Abbreviated reference :
I.CJPleadinSoutWesfAfrica,
Volv
Référenabrkgée:
C.1.MémoireSud-Oueafricain,
volv
1 nmb~ 331 1
No derente:Al1 rights reserved by the
International Court of justice
Tous droits réservés par la
Cour internationale de Justice SOUTH WEST AFRICA CASES
(ETHIOPIA v.SOUTH AFRICA;
LIBERIA v.SOUTH AFRICA)
AFFAIRESDU SUD-OUEST AFRICAIN
(ÉTHIOPIE c.AFRIQUEDU SUD;
LIB~RIA c.AFRIQUEDU SUD) lNTERNATIONfCOURT OFJUSTICE
PLEADINGS,ORAL ARGUMENTS, DOCUMENTS
SOUTH WEST AFRICA CASES
(ETHIOPIAvSOUTH AFRICA;
LIBERIAv.SOUTH AFRICA)
VOLUME V
COUR INTERNATIONALEDE JUSTICE
MEMOIRES,PLAIDOIRIES ET DOCUMENTS
AFFAIRESDU SUD-OUEST AFRICAIN
(~THIOPIEc. AFRIQUEDU SUD;
LIBERI AAFRIQUEDU SUD)
VOLUME VPRINTED IN THE NETHERLASDS The present volume contains the Rejoinder (Parts 1, II and
Sections A-E of Part III) filed in the South West Africa cases.
The proceedings in these cases, which were entered on the Court's
General List on 4 November 1960 under numbers 46 and 47, were
joined by an Order ofthe Court of 20 May 1961 (South West Africn,
Order of20 May 1961, I.C.J. Refiorts1961, p.13).Two Judgrnents
have been delivered, the first on 21 December 1962 (South West
Africa, Preliminary Objections, Jtrdgment, I.C.J. Reports 1962,
p. 3191,and the second on 18 July 1966 (SozcthWest Africa, Second
Phase,Judgment, I.C.J.Reports 1966, p.6).
The page references originally appearing in the pleadings have
been altered to correspond with the pagination of the present
edition. Where the reference is to another volume of the present
edition, the volume is indicatedby a roman nurneral in bold type.
The Hague, 1966.
Le présent volume reproduit la duplique (~reet ze parties et
sectionsA-E de la 3epartie) déposéedans les affaires du Sud-Ouest
africain. Ces affaires ontétéinscrites au rôle généralde la Cour
sous lesnos 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, ordonnancedzt 20 mai 1961, C.I.J. Recueil 1961, p. 13).
Elles ont fait l'objet de deuxarrêts rendus le 21 décembre 1962
(Sud-Oziestafricain, exceptions préliminaires, arrê, .I.J.Rec~eil
1962, p. 319) et le18 juillet 1966 (Sud-Ouest africain, deuxikme
phase, arrét,C.1J. Recueil1966, p.6).
Les renvois d'un mémoire à l'autre ontété modifiéspour tenir
compte de Ia 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.
LaRaye,1966. CONTENTS - TABLE DES MATIÈRES
PART 1. APPLICATION INSTITUTING
PROCEEDINGS AND PLEADINGS
PREhIII?RE PARTIE. REQUETE INTRODUCTIVE
D'INSTANCE ET BIÉMOIRES
SECTION LI.PLEADINGÇ (continued)
SECTION B.MEMOIRES (suite)
7. Rejoinder filed by the Governmentof the Republicof South Africa
Page
List of abbreviations . . . . . . . . . . . . . . . . . . . . 1
Part 1.General introduction-. . . . . . . . . . . . . . . . . 3
Annex to Part 1 . . . . . . . . . . . . . . . . . . . . . 5
Part II . . . . . . . . . . . . . . . . . . . . . . . . . .
& Chapter 1. Introductory . . . . . . . . . . . . . . . . .
Chapter'lI. The foiindations'of Respondent's legal argument. ,
A. General . . . . . . . . . . . . . . . . . . . . . .
R. Effect of the prcvious Advisory Opinion and effect of the
Judgment and Opinions on the Preliminary Objections. .
C. Origin and contents of the Mandate . . . . . . . . . .
1.Whether the mandate system "represented a victory
for the opponents of the pnnciple of annexation". . .
11.Whether Respondent was obliged in terms of the Man-
date to lead the inhabitants of the Territory towards
eventual self-determination . . . . . . . . . . . .
III.Whether the mandated territory possessed a separate
international statu5 . . . . . . . . . . . . . . . .
IV. gave nse to "legalobligationsd. . .el. . . . . . .ip. .
Chapter III.The Mandatory's procedural obligations . . . . . 23
A. Applicants' approach to the issue . . . . . . . . . . . 23
B. The rneaningof, or implications in, the mandate documents 31
1. The nature and implications of the Parties' respective
attitudes . . . . . . . . . . . . . . . . . . . . 31
III. Chapter IVI of the Reply. . . .. . . . . . . . . .. ... 39
The general tenor of C.hapter VI . . . . . . . . . . 39
Summary of Applicants' apparent contention . . . . 41 SOUTH WEST AFRICA
Page
Fiduciary institutions in municipal law ....... 42
The analogy between the international mandate and
municipal fiduciary institutions ......... 45
Further authorities quoted by Applicants ...... 46
Conclusion ................... 47
IV .The "organized international community" as described
b- Applicantç ................... 49
The relationship between the "organized international
community" and the League of Nations ...... 49
The powers and functions of the "organized interna-
tional community" ............... 50
The composition of the "organized international com-
munity" .................... 51
Conclusion .................... 52
C. The events during the years 1945-1946 ......... 53
D . Conclusion ..................... 57
Chapter IV .The lapseof the Mandate as awhole ....... 58
A . General ....................... 58
. .
1.The p&-port of ~eçiondent's contention ....... 5s
. II.'Applicants' reply to Respondent's contention .... 67 .
.III;Conclusion .................... 84
B . The comprornissory clause in .rticle7 of the Mandate . . Sj
1.Introductorv ................... 8.5
II.The scope &d purpose of the cornpromissory clause. . 86
III . The effect of th1950 Adviçory Opinion and the 1962
Judgrnent on the Preliminary Objections ...... 97
IV . Conclusion..................... 99
Part III .......................... 100
Section A. General .................... IOO
1. Introductorp ................... 100
IOO
II.The legal basis of Applicants' charges ........
III.Applicants' case regarding the Coloured and Baster
groups ..................... roS
IV .The significance to be attached to reports and resolu- 112
tions of United Nations Organs and Agencies .....
V .References to other countries. including the applicant
States and South Africa .............. 1x5
VI .Summary of certain general topics ......... 117
Section B. Applicants' alleged norm of non-discrimination
or non.separation .................... 119
The United Nations Charter ............... 131
The Constitution of the International Labour Organisation . 132
Conclusion ....................... 141 SOUTH WEST AFRICA
Page
F .Consultations with. and real wisheç of. theNative groups 281
G . Applicants' allegations regardi"gfosterin" oftribalism 291
H . Migratory labour-as an alieged consequence of the
homeland system. and the evils thereof........ 304
1. Philip Mason's suggestion of perpetuation of measures
of discrimination ................. 306
J .Mason's suggestion that the white population in South
West Africa istobe taken into account for a transitional
period only.................... 308
K . lncidental matters referred to in the Repl...... 310
Chapter VI .Judgments of qualified perçons with first-hand
knowledge of South Africa and South West Africa .... 325
A . Introductory ................... 325
B . Political parties and policies in South Afri..... 326
C . Intellectual societies intereçindrace relations.... 331
D . The Churches ................... 340
E . Authors and journalists .............. 357
F . South African Bantu ............... 360
G . South African Coloureds .............. . 369
H . South African Asiatics............... 374
1 . conclusion .................... 375
Chapter VI1 .Views of foreign governments and commentators
Chapter VI11 . Weight of scientific author:grouppreferences 378
andprejudiceç ..................... 400
A . General ..................... 400
B . Group preferences and prejudices .......... 403
C . Conclusion .................... 408
Chapter IX. Weight of scientific authority: "difference"
without "inferiority" ................. 4O9
A. Introductory ................... 409
.B. Alleged necessary implication of inferiori...... 410
C. Keçpondent's attitude in regard to Applicants' state-
ment on modern science .............. 412
D. Conclusion .................... 419
Chapter X . Weight of scientific 'a6thority: Respondent's
allegedcontention of inevitable frustratio....... 420
A. General ..................... 420
.C. Other viemsd............................ 427
D. Conclusion .................... 428
Chapter XI . Weight of scientific authority: government policy
.and group reactions ................. 430
A. Introduction ................... 430
1. The composition and nature of population groups in the
United States ................... 432
C. The cornposition and nature of population groups in
South West Africa ................. 434 CONTENTS XII1
Page
D . The cignificance of the differences in the composition
and nature ofthe populationgroups in the United States
and in South West Africa.............. 434
E . Anti-discriminationlegislation in the United States . .435
F . The extent to which government policy in the United
States has failed to achieve succes......... 436
G .Detrimental results of the federal government's policy
in the United States ................ 445
HI.The views of authorities and commentators opposed to 450
those quoted by Applicants............. 453
J . Conclusion .................... 460
CliapterXII .Conclusion to SectionE ...........
Annes ta Section E .Historical background toRespondent's
policy of differentiation in South Africa........
A . Introductory ..................
B . The inhabitants of South Africa circ1652.....
C .The first contact with the Bantu .........
D .The great trek and the establishment of the republics
E . Unification and its aitermath ...........
F . Conclusion ................... 7. REJOINDER FILED BY THE GOVERNMENT OF THE
REPUBLICOF SOUTH AFRICA
LIST OF ABBKEVIATlONS
A.D. Appellate Division of the Supreme Court of
South Africa.
B.Y.B.I.L. BritishYear Book of International Law.
Ecosac. Economic and Social Councii.
G.A. General Assembly.
G.N. Governrnent Notice.
I.L.O. International Labour Organisation.
L. of N.,O.J. League of Nations, Official Journal.
O.R. Official Records.
Ord. Ordinance.
P.M.C., Ilin. Permanent Mandates Commission, Minutes.
Proc. Proclamation.
Rand (unitof currency:South Africa).
R.P. " Republic Publication" : Prefix to serial
number which has been allocated ta officia1
publications (usually "bluc books") since
South Africa became a republic on 31 May
1961.
S.A. South Africa.
Sec. Section.
Sess. Session.
Suppl. Supplement.
S.W.A. South West Africa.
U.G. "Union Government": Prefix toserial number
which was allocntcd to officia1publications
(usually "blue books") of the Government
of the Union of South Africa.
U.N. Doc. United Nations Document.
U. ofS.A., Parl. Deb. Union of South Africa, Parliamentary Debates.
1961 U.S.C.C.R.R. United States Commission on Civil Rights
Report, 1961
1963 R.U.S.C.C.R. Iieport of the United States Commission on
Civil Rights,1963. PART 1
GENERAL INTRODUCTION
I. This Rejoinder is submitted pursuant to the Orders of the Court
dated zo January 1964 and 20 October 1964, and the Ung thereof
marks the closure of the written proceedings in thèse cases.
z.The rnaterial presented is divided into seven parts dealing respec-
tively with the following matters:
Part 1: General introduction.
Part II: Legal argument regarding the lapse of the Mandate and the
supervisory functions of the League of Nations.
Part III: Alleged violations of Article 2, paragraph 2, of the Mandate.
Part IV: Alleged violations of Article 4 of the Mandate.
Part V: Alleged violations ofArticle 2, paragraph r, of the Mandate.
Part VI: Alleged violations of Article 7, paragraph I, of the Mandate.
Part VI1 : Respondent's subrnissions.
Some of the aforementioned parts are further divided into sections,
the basis of division being explained at the commencement of each such
part.
3. Inview of the bulk thereof this Rejoinder is bound in two volumes.
The first volume contains Part 1, Part IIand sections A toE of Part III,
and the second contains sections F to 1 of Part III and Parts IV to VII.
4.In addition to the material presented by Applicants relative to the
issues at present before the Court, the Reply also contains a chapter
headed "Hiçtory of the Dispute Since 1960" . s appears frorn the con-
clusion to the said chapter, Applicants rely on the record of events
recounted therein as excluding any-
". .. doubt that persevering effort on the part of the United Nations,
by its responsible organs and agencies, in and through which
Applicants have sought to settle their dispute with Respondent
relating to the interpretation and the application of the provisions
of the Mandate, have been unavailing 2".
In the Judgment on the Prelirninary Objections this Court, in holding
that there was in existence a dispute such as contemplated in Article 7
of the Mandate, expressed the view that "no reasonabIe probability
exists that further negotiations would lead to a settlement {thereofl 3".
In so far as Chapter II of the Reply purports to demonstrate that the
alleged dispute between Applicants and Respondent has not been settled
by negotiation, itis not relevant tothe issues at preçent before the Court.
Applicants also submit that tIierecord of events recounted in the said
Chapter "makes clear that the General AssembIy's . . . finding [Le., that
Respondent had 'failed and refused to carry out its obligations under the
l Chapter II,IV,pp. 222-230.
Ni p. 230.
South WestAfricu. Preliminary Objections,Jüdgment, I.C.j.Reportsp.9319.
at P.345.4 SOUTH WEST AFRICA
Mandate'] ... rernain[s] valid" l. The relevance of the subject-matter of
the said Chapter in the respect stated by Applicants isdealt with later in
this Kejoinder z.
However, in the course of recounting events which have occurred since
1960, Applicants in the çaid Chapter deal, inter dia, with a particular
matter to which reference was made in the Counter-Mernorial 3,i.e., the
visit to South West ilfrica in 1962 of the Chairman and Vice-Chairman of
the Special Cornmittee for South West Africaanddeclarations made by
them relative ta conditions in the Territory. Inasmuch as Applicants'
version of the circumstances surrounding the said visit and the aftermath
thereof is incomplete and distorted, Respondent considers it necessary to
set the record straight in this respect, a matter which will be dealt with
in the Annex to this Chapter.
'IV, p.22.
2Part III,sec. A,paras. 16-20,infra.
'II.p. 4. Annex to Part1
r. In proof of the unreiiabiIity of reports and resolutions of organs
and agencies of the United Nations relevant to South West Africa,
Kespondent in the Counter-Mernorial 1 referred to General Assembly
resolution 1702 (XVI) of rg December 1961, and in contrast therewith
quoted an extract from the joint communiqué issued after the visit to
South West Africa in 1962 of the Chairman (Mr. Carpio) and the
Vice-Chaiman (Dr. de Alva) of the Special Committee for South
West Africa, to which said communiqué they were parties. In reaction
thereto Applicants state in the Reply that-
"[tlhe actual circum~tanceç surrounding the brief visit (the itinerary
of which was fixed by Respondent); the preparation of the 'joint
communiqué' at the concluçion thereof; the acrirnonious, though
temporary, misunderstanding between the Chairman and Vice-
Chairman as to both occurrence and substance; and the ultimate
understanding between them, embodied in a jointly-signed Report
to the Special Committee, are al1 fully set forth in a Report of the
Special Commiitee itself, and, as Respondent concedes, 'to canvass
them fully would be a lengthy process which could serve no purpose
in these proceeding~'~." (Footnotes omitted.)
It should be observed at the outset that, as willbe pointed out with
reference to many other parts of the lieply, Applicants in the above
passage quote out of context a statement made inthe Counter-Memorial.
What Kespondent in fact said, was ttiat to canvass fullthestats~letttOY
conclusionsof factinthereportsalzdr~~solution rsferredtoin theMtimorials,
"would be a lengthy process which could serve no purpose in these
proceedings". This statement had no application tri the circumstances
surrounding the said visit and its aftermath. It is tme, however, that
these circumstances, as also the reports and resolutions referred to in
both the Memorials and the Repiy, are in Respondent's view not relevant
to the issues at present before the Court. The declarations of JIr. Carpio
and Dr. de AIva were relied upon by Respondent only for the limited
purpose of demonstrating the unreliability of reports and resoIutions of
the United Nations organs and agencies reIied upon by Applicants.
2.In the succeeding paragraphs Respondent will show that, contrary
to what Applicants suggest, Mr. Carpio and Dr. de AIva had the fullest
opportunity to visit anylocality in the Terntory; that the joint communi-
quéwas in fact issued at the conclusionoftheir visit withthe full know-
ledge and approval of both visitors, and that they never reached an
"ultimate understanding" in regard to hlr. Carpio's subsequent repudia-
tion of the communiqué.
3. As was stated in the Counter-hlemorial3, hir. Carpio and Dr. de
Aiva visitedthe Tem-tory during May 1962 as pests of Respondent.
During the first discussion that took place between these twogentlemen
and Respondent's representativeç, itwaç decided that no formal record
1II, p. 3.
IV, pp.235-227.
'II, p4.6 SOUTH WEST AFRICA
would be kept but that the participants should be free to take notes if
they sowished l.The Prime blinister of the Republic made it clear that
the South Afncan Government would be happy to arrange a visit to
South West Africa,where the visitors would be at liberty to seewhat they
wished and to speak to whomsoever they desired. He outlined the
suggested itinerary briefly, saying that it would not be possible to fit in a
proper programme in only seven days-as hlr. Carpio was reported to
have suggested. He stated that another itinerary, covering three weeks
or longer, could be drawn up, but the Chairman and Vice-Chairman
intimated that a ten-day itinerary would satisfy them.
ln the course of this discussion Rlr.Carpio enquired whether the itiner-
ary included a visit to the Caprivi Zipfel, and stated that he did soin view
of the alleged fortifications and military bases in that area. The Prime
Minister replied that no provision was made for such a visit since the
Zipfel was far distant from the rest of South West Africa but that a visit
thereto could bc arranged if desired by the visitors 2.
A visit to the CapriviZipfelwas subsequently included in the itinerary.
The Prime Minister also intimated that if Mr. Carpio and Dr. de Alva
should forany reason wish to goto any place not included inthe itinerary,
they should requcst their conductor to make the necessary arrangements,
even if that meant prolonging the visit.They did not avail thernselves
of this offer; on the contrary, a visit to the Waterberg-East Reserve
scheduled in the itinerary was escluded, and in addition the Chairman
did not proceed from Windhoek to another place which was on the
itinerary, nor did he accompany Ur. de Alva to the Caprivi Zipfel.
4. After the retum of the visitors from the Territory, discussions were
resumed in Pretoria on 24 May 1962. The Prime Minister pertinently
asked Rlr. Carpio and Dr. de Alva whether they had noticed any threat
to the peace or any signr of militarization in South West Africa. Dr.
de Alva immediately replied that he personally had seen nothing to sub-
stantiate the relevant charges which had been made by United Nations
organs in that regard. &Ir.Carpio initially stated that he could not form
an opinion since he had not visited every important locality in the Terri-
tory. Asked to name the alleged centres of rnilitarization hIr. Carpio
mentioned the following places: Ohopoho, the Kaokoveld, Ondangua,
the Caprivi Zipfel and Windhoek. It was then pointed out that at least
one member of his party had visited all these centres, and that no signs
of militarization had been noticed 3.
The Prime Minister remarked that hewas concerned about the fact that
the allegation of militarization had not been unequivocally repudiated
by Mr.Carpio. He offeredto arrange for impartial observers, e.g.,military
attachés of any two local embassies named by the visitors to ,be sent
immediately to inspect any of tlie areas mentioncd by Mr. Carpio; siicli
observers to report directly to the latter. These observers could leave for
South West Africa straightaway, so that it might not be said aftenvards
that the South African Government had in the meantime removed
evidence of militarization. This offer was, however, not accepted.
lNotes were in actual fact taken down by several of the South African officiais.
Some of the information containecl in the succeedin~garagraphs isderived from
these notes.
VideG.A .,OR..,SmcnfetnthScss.,FourfhCmmiifee, 1381st Meeting.pp. 339-340.
Vide foatnote2,para. 7, infra. REJOINDER OF SOUTH AFRICA 7
The Prime Rlinitjterthen enquired whether the visitors had encountered
anp evidencein substantiation ofthe charge of extermination or genocide
which had been levelled against the South African Government. Mr.
Carpio repIied in the negative.
-
5. UThendiscussions were resumed on 25 May, it was agreed that a
joint communiqué would be issued after completion of the deliberations,
and that officialson both sides would prepare a draft of such a statement
during the lunch interval.
At the afternoon meeting, the Prime Minister stated that hehad learned
with regret that hlr. Carpio was indisposed and could not be present l.
He enquired if Dr. de Alva would meanwhile proceed with the discussion
of the prelirninary draft statement which had been drawn up by the
officials.Dr. deAlva said that he ~vould,but that the text of the document
wouid have to be put to Mr. Carpio since it was essential that he agree
toit. The draft wasthen read out and cliscussedparagraph by paragraph.
Proposais for changes were made by both sides and a new draft was
agreed upon which Dr. de Alva undertook to discuss with Mr.Carpio.
6. When discussions were resumed the next morning, Dr. de Alva drew
attention to two important changes which had been proposed by
Mr. Carpio in paragraphs 3 and 4 of the draft communiqué. Mr. Carpio
had insisted that reference be made in paragraph 3 thereof to the limited
duration of the mission'sstay in South West Africa, and that their finding
as to a threat to peace be circumscribed by limiting it to the places
visited and the evidence heard. The Prime hiinister agreed to accept the
changes with regard to the reference to a "ten day visit", but made it
clear that he understood that the report to thc United Nations would
explain that every facility had been given to the visitors to go where they
pleased, and to extend their stay if they so wished.
Asregards paragraph 4,Dr. de Alva said that Mr.Carpio had requested
that reference bemade tothe fact that the missiondid not have an oppor-
tunity to investigate fully the allegation with respect to politicalprisoners.
It was then agreed to redraft the first sentence of paragraph 4 to meet
this point.
Several other minor textual changes were discussed and disposed of.
The Prime Minister then enquired if the text could be regarded asagreed
to by everybody concerned, and Dr. de Alva replied in the affirmative.
7.-The relevait portion of the text of the communiqué, as issued on
26 May read as follows2:
"1. Discussians betneen Ambassadors Carpio and Martinez de
Alva and the Prime hlinister and the Minister of Foreign Affairs
were resumed in the same friendly and frank atmosphere that
characterised the former meetings. Ambassador Carpio expressed
the appreciation of the visitors for al1 the arrangements made and
for the free and uninhibited opportunities given to the Vice-Chair-
man and himself to meet with al1 sections of the population of
South West Africa desiring to contact them, and hoped that further
visits could in the futurebe arranged.
2. In reply to a proposa1that frirther visits by perçons connected
lThis was the first occasion during the taonwhich Ambassador Carpio was
not present.
Also issued bythe U.N. Office ofInformatioas G.A.2501,26 May 1962.8 SOUTH WEST AFRICA
with the United Nations could usefdly be arranged, particularly
one by the whole Special Committee for South West Africa the
Prime Minister stated that it would be bat to await the issue of
the report of the Chairman and Vice-Chairman and its reception by
the Committee and the General Assembly before considering this
matter further. He added, however, as was indicated in the invi-
tation extended to the Chairrnan and Vice-Chairman, that South
Afnca could not be expected to receive a cornmittee with instruc-
tions to act contrary to the juridical position of the Republic of
South Africa.
3. At the request of the Prime Minister both the Cliairman and
the Vice-Chairman gave their impressions gained during their ten
day visit to the Territorÿ. They stated that in the places visited
they had found no evidence and heard no allegations that there was
a threat to international peace and security within South West
Africa; that there were signs ofmilitarisation in the terntoryl; or
that the indigenous population was being exterminated.
4. While naturaiiy a detailed investigation risto the question of
the detention of political prisoners could not be made, the Chairman
and Vice-Chairman noted that no case of detention of political
prisoners had been brought to their attention dunng their viçit.
They have, however, received allegations that a few persons have
been repatriated to Ovamboland or elsewhere because of political
activities. The Prime Minister stated that he would have tliese
allegations inveçtigated.
5.The further discussions dealt with suggestions by both Ambas-
sadors to improve relations between South Africa and the United
Nations."
8. At midday on 26 May 1962, Respondent's Foreign Minister paid
a courtesy cal1on Mr. Carpio at his hotel.A little later MB. G. Fourie,
at the time Respondent 's permanent representative at the United
Nations, also visited MT. Carpio. During neither of these visits did
Mr. Carpio siiggest that he had in any way dissented from the joint
communiqué.
, On Sunday, 27 May 1~62, on the advice of his doctors, Mr. Carpio
was taken to hospital where he .rernained until3 June. During his stay
in hospital he received the dailp newspapers in which prominence was
given to the joint communiqué. He was regularly visited byMT.D.B. Sole,
Under-Secretary for Foreign Affairs, who was a participarit in al1 the
discussions. He was also viçited by Mr. R. Jones, Deputy-Secretary for
Foreign Affairs. To neither of these persons did he intimate thathe was
not a party to the joint communiqué.' It was only at an airport press
conference on 5 June 1962 when about to depart from South Africa that
Mr. Carpio hinted that he was not responsible for the communiqué.
9.Dr. de AIva has consistently pointed out that both Mr. Carpio and
he approved in totoof the joint communiqué and thatit was issued with
the fuII authority ofa11parties concerned, including Mr. Carpio.
lA footnote to paragrap3 appearedherewhich read: "The Chairman and Vice-
Chairman were informed by the South Afncan authoritand noted the existence
of a nine-man military administrative headquarters in Windhoek. There is also a
unitof the citizens' force (which undergoes tfgrtwo weeks per annum)with
17 Officersand206Other Ranks." REJOINDER OF SOUTH AFRICA 9
It is noteworthy that Dr. de Alva mentioned in his letter of16 July
1962 to the Under-Secretary for Trusteeship and Information from Non-
Self-Goverpin Territories that Mr. Berendsen and iMiss Yarrow, the
two United 8ations ofiùals iuho accompanied the visitors to South
Africa and the Territory, actually conveyed to him Mr. Carpio's-
". .. full authority to accept the joint communiqué as it had been
drafted, including paragraphs 3 and 4, but with the changes on
which he [Mr. Carpio] had been so insistent . . .l".
The said officials, while in South Africa, also informed the Press that
Mr. Carpio had been consulted throughout as ifhe had been present at
the officia1discussions.
During the course of a statement made at the 95th meeting of the
Special Committee on the Situation in regard to the Implementation of
the Declaration on the Granting of Independe~ice to Colonial Countries
and Peoples, Mr. Mbururnba Kerina, one of the regular petitioners to the
United Nations regarding South West Africa, made certain senous alle-
gations against, inter alios, the aforementioned two officials. This led ta
decision ofthesecretary-General toconduct an enquiry as tothe assertions
regarding the members of the Secretariat. An appointed committee .
carefully examined the matter for a period of more than six months.
Mr. Kerina appeared before the committee, but declined to support Lis
allegations and refused to answer any questions of the cornmittee. On
receipt of the findings of the committee of enquiry, and after careful
consideration, the Secretary-General came to the conclusion that "... the
staff members concerned acted throughout in good faith", and he stated
that he was- 1
". .. satisfied that whatever assistance they [hlr.Berendsen and
Miss Yarrow] gave to the Chairman and Vice-Chairman of the
Special Committee for South West Africa was requested of them and
was given in accordance with the traditions and established practices
of the Secretariat.
Accordingly ... the Secretary-General has determined that the
allegations against the staff members were not well founded and
that, from his point of view, the matter is closed *."
IO.Speaking at the eighth meeting of the Special Committee for South
!A7estAfrica on 24 July 1962D ,r. de Alva stated that-
". .. Mr. Carpio and he had gone to South Africa, not in their
persona1 capacity as the Chairman had indicated, but as officers of
the Committee.
The Chairman had çaid that the joint communiqué issued at
Pretoria had come as a disageeable shock to the Committee. Such
an adjective could describe only a subjective personal reaction; he
hoped the Committee would give him an opportunity to discuss the
question of the joint communiqué withthe thoroughness it required.
Whether the work accompLished by the mission to South Africa
1 Report of the Special Committee for SouthWest Africa, C.A., O.R., Seventeenth
Se2sUnited Nations Secretariat, InformatiCircular toMembers of the Stafrom
the Director of Personnel, STIADMjSER.Al837,29 Mar. 1963.
Atthat meeting Mr. Arteh of Somalia.IO SOUTH WEST AFRICA
and South West Africa was regarded as a triumph or as a disaster,
it repreçented a solid achievement . ..'",
and in commenting on a draft letter under cover of which the Special
Committee for South West Africa proposed to despatch its report to the
"Committee of SeventeenHZ,Dr, de Alva stated at the 13th meeting of
the first-mentioned Coinmittee that-
"... the communiqué existed and had actually been issued jointly
by the South African Government, the Chairman and the Vice-
Chairman; consequently, it could not be clescribed . ..as an 'alleged*
joint conlmuniqué, nor could it be attributed solely to the South
African Covernment . ..Since the Chairman continued to deny that
he had had any part in the preparation, drafting or publication
of the communiqué, and the Vice-Chairman chaIlenged his position,
the text should refer to the letters they had sent to the Under-
Secretary explaining their respective positions 3."
Dr. de Alva continued :
"The Chairman had participated in those conversations; he had
been fully aware of the position and it had been with his consent
that the communiqué had been prepared. Indeed, the Chairman
and the Vice-Chairman had proceeded in full agreement from the
time the communiqué was drafted until it was issued. He personally
was not prepared to alter a single word of the statement to which
he had subscribed.
.. .the existence of the communiqué could not be denied, irrespective
of the Cornmittee's opinion of its contents, and since it had, infact,
been issued jointly by the spokesmen of the South African Govern-
ment and by the Chairman and Vice-Chairman, acting in their
officia1capacity as representatives of the Committee4."
II. The reaction of Mr. Arteh (Somalia) to Dr. de Alva's statement
affords a good example of the degree of responsibility adopted by someof
the United Nations delegates ivhen dealing with questions affecting
South West Africa. Despite the overwhelmingweight of evidence known
at that stage, he said that-
". .. his delegation regarded the Chairman's statement that he had
had no part in the drafting or publication of the communiqué as an
authoritative statement, and accepted it as oficial. He therefore
wished to retain the word 'alleged' before 'joint cornrnuniqué'in the
draft letter of transmittal. The Committee should endeavour to be
objective; it should not assume the attitudeof a court of enquiry ; the
Chairman's assertions should be regarded as final and absolute S."
(Italics added.)
12. At the 14th meeting of a Special Committee on 3 August 1962,
l U.N.,G.A .,Special Committee for South West Africa: Summary Record of the
Eighth Meeting, 24 July 1962, U.N. Doc. A/AC.IIO/SR.~, p. 5.
Special Cornmittee on the Situation with regard to the Implementation of the
Declaration on the Granting of Independence to Colonial Countries and Peoples.
' U.N.,G.A., SpecialCommittee for South West Africa:Summary Record ofthe
mirteenth Meeting, 2 Aug. 1962, U.N. Doc. A/AC.IIO(SR.I~, p. 7.
Ibid., p8.
"bid., Mr.Arteh was the Rapporteur and at one stage Chairrnas of the Special
Committee for South West Africa. REJ OINDER OF SOUTH AFRICA II
Dr. de Alva, replying to a lengthy staternent by Mr. Ca~io jnwhich the
latter once more sought to disown the joint communique, stated that he
(Dr.de Alva)-
"... would have been wiliing to give full credence tothe Chairman's
esplanation if it had not been offered ex Pest facto.Whatever his
reasons for not joining in the communiqué, the fact was that he
nevertheless had done so and was responsible for that action to the
same extent as the hlexican representative, the only difference
between theni being that the one maintained his position while the
otliernow tepudiated l."
13.In conclusion attention is drawn to the manner in which the joint
communiqué was eventually dealt with by the Special Committee. At
the 13th meeting of the Committee several members expressed disagree-
ment with the letter of transmittal drafted by the representatives of
Somalia and Burrna, which in effect ignored the communique. The
Norwegian representative wanted al1 the avaiIable documents to be
forwarded to the "Committee of Seventeen" Later &Ir.Borja (Philip-
pines) however stated that "[tlhe Philippine Government would not
permit its Ambassador [Mr. Carpio ]o be subjected to a police inter-
rogation by the Committee" 3.
At the 14th meeting of theSpecial Committee various members per-
sisted in opposing thedraft letter of transmittal,butaftsome cursorydis-
cuççion, the proposa1 of the Nonvegian representative was put to the vote.
Inthe end the third paragraph of the draft letter was adopted by 4 votes
to 3+. This meant that the joint communiqué was not included in the
evidence fonvarded to the "Committee of Seventeen" and that it was not
considered by the United Nations when remlution 1805 was adopted
14. Many delegates to the United Nations had, prior to the issue of
tlie joint communiqué in 1962, concentrated on the three charges concern-
ing a threat to the peace, genocide and militarization in South West
Africa. The main charge was that international peace was being endan-
gered as a result of the alleged situation inthe Territory. NO less than
31 delegations had during 1960-19 6 1de that charge, on which heavy
reliance was placed because it could be used in the Security Council
as a ground for taking action against Respondent. The admission by the
two emissaries of the United Nations disposed of the main charge, as
also the other two serious charges, against Respondent.If these delegates,
or the mernbers of the Special Committee had the interests of the
inhabitants of the Territory at heart, one would have eupected that the
contents of the joint communiqué would have been a great relief to them.
Instead, but perhaps not surprisingly, the general reaction was that
"[tlhat Communiqué had corne as a disagreeable shock . .."6.
U.N., G.A., Special Committee for SoIVestAfrica: Summary Record of the
Fourteenth Meeting,3 Aug. 1962, U.N. DUC.A/AC.TIO/SR.I~, p. 6.
Ibid., Summary Record of the Thirteenth Meeting,2 Aug. 1962, U.N. Dac.
A/AC.rro/SR.i3, pp.4-5 and 7.
Ibid.p. g.
Ibid., Summary Record of the Fourteenth Meeting, 3 Aug. 1962, U.N. DO^.
A/AC.rrojSR.iq, pp.3-11.
VideIV,p. 227.
* Ibid.. Summary Record of the Eighth Meeting, 24 July rgU.N. Roc. A/AC.
r1oiSR.8, p. 3.12 SOUTH WEST AFRICA
15.As already pointed out l Applicants take up the attitude tliat the
communiqué is irrelevant for the purpose of the present proceedings.
They proceed to allege,however, thai-
"[wlhat is of relevant, and indeed decisive, significance are their
[Mr. Carpio and Dr. de Alva's] jointly-approved conclusions, based
upon 'what they saw and heard dunng their visit to the Mandated
Territory .. .'2".
The fact that these "jointly-approved conclusions" involve that the Terri-
tory "has been and continues to be pervaded by the rigorous application
of apartheid" js said to be of "decisive . . . significance"; yet the state-
ment in the joint communiqué to tlie effect that the above-mentioned
three serious charges are without substance, Dr. de Alva's maintained
support thereof, and the clear evidence that Mr. Carpio was a party to
the communiqué, are considered to be irrelevant.
The phenomenon of measuring by double standards is, so it seerns,
not something peculiar to United Nations organs.
16. The point of irnmediate importance is that, despite the evidence
of Dr. de Alva and that of the members of the Secretariat inquestion,
the SpecialComniittee refusedtogive recognition to the joint communiqué
to which Mr. Carpio and Dr. de Alva were parties, for the very reason
that the declarations in the said communiqué relevant to conditions in
South West Africa were in conflict with what the majority of the Com-
mittee wished the wor1d to believe.
Respondent submits that there can be no clearer proof of the correct-
ness of its submission that no reliance can be placed on reports and
resolutions of organs and agencies of the United Nations regarding con-
ditions in South West Africa and Respondent's administration of the
Territory.
lVide para. 5, supra.
IV, p.226. PART II
CHAPTER 1
INTRODUCTORY
1. The present part of the Rejoinder will be devoted to the issues
arising from Applicants' Submissions I, 2,7 and 8,and, inparticular,their
contentions that the hlandate is still in existence, and that Respondent
is obliged to render account to, and submit to the supervision of, the
General Assembly of the United Nations Organization.
z. Respondent 's arguments regarding the issiiesdealt with herein
are contained in Book II of the Counter-Memorial. In their Reply,
Applicants do not furnish a self-contained or comprehensive answer to
Respondent's arguments, but pick out bits and pieces with which they
deal in a nurnber of different chapters and annexes. The position is
further obscured by the fact that many of the portions thus singled out
for comment are rendered inaccurately or out of context, as will be seen,
and in addition bythe fact that the chapters and annexes in which they
are dealt with, contain also other matter not relevant to the issues con-
cerning the submiçsions under discussion.
Thus Applicants commence their treatrnent of the issues dealt lvitith
herein, in a chapter of their Reply entitled "The Nature of the Man-
date". Thcre they deal with "the respectivepositions" allegedly taken
bu the Parties to the present proceedings on "certain key issues"
concerning "the nature and essential phcipies of the Jfandate" l.
Applicants' contentions in this regard overlap uith those in Chapters V
and VI of their Reply, which are concerned respectively witli the "Legal
Basis and Legal Nature of Respondent's Obligations towards the
Inhabitants of the Territory" and "Respondent's Violations of its
Obligations towards the United Nations", as well as to a certain extent
with those in Chapter VII, Part B, dealing with Respondent's alleged
"Violations of Article 2 (1)of the hlandate and Article 22 of the Cove-
nant". Their Annex S ("Brief Survey of Legal Arguments Previously
Advanced by Respondent, and Dispositions thereof previously made by
this Honourable Court, with respect to Kespondent's Obligations toward
the United Nations") aIthough apparently intended as supplernentary
to Chapter VI, in fact partly covers the same ground, only, however, to
reach an inconsistent conclusion =.
3. To avoid as far as possible a sirnilar overlapping, as well as to indi-
cate more precisely the aspects on which Applicants have chosen to join
issue with Respondent (and, perhaps more important, the aspects which
the- have not seen fit to contest), Respondent proposes in this part, as
in the Rejoinder as a whole, to deal with matters raiçed in the Reply in
the same order as that adopted in the Counter-Mernorial. The further
chapters in this part will accordingly be the following, each being
2IVideChap. II, para2,infva.I4 SOUTH WEST AFRICA
concemed with the same subject-matter as the correçponding chapter
in Book II of the Counter-Mernorial:
Chapter II: The foundations of Respondent's legal argument.
Chapter III: The Mandatory's procedural obljgations.
Chapter IV: The lapse of theMandate as awhole. CHAPTER II
THE FOUNDATIONS OF RESPONDENT'S LEGALARGUMENT
A, General
I. In the present chapter, consideration will be given to issues arising
in respect of matters dealt with in the corresponding chapter of Book II
of the Counter-Mernorial, irrespective of where such issues are dealt
with in the Replyl. Thesaid chapter of the Counter-Memonal was devoted
to a number of different topics, which al1underlie therest of Respondent's
legal argument, but same of which are atherwise unrelated For the
greater part they are not contested in the Reply. It is accordingly only
necessary to reply herein to the few isolated points on which Applicants
join issue with Respondent.
B. Effectof the PreviousAdvisoryOpinionand Effectof the Judgment
and Opinionson the PreliminaryObjections3
2. In this regard, Applicantç state:
"It is in the nature of legalproceedings, and perhaps especia!ly
so of a Proceeding before this HonourabIe Court, that the parties
are entitled to the fullest opportunity to be heard. Applicants
cannot, and do not, dispute Respondent's privilege to reassert in
a contentious proceeding that the Mandate, and the obligation to
respond to international supervision, have lapsed, even though the
arguments are the same as those twice before considered in 1950
and 1962 '."
The statement of legal principIe contained in the above passage (as
distinct from the assertion that "the arguments are the same as those
twice before considered") 5 is in accordance with Kespondent's own
submissions $, and its soundness can hardly be open to question.
Later, however, Applicants adopt a different attitude. There they say :
". .. it is submitted that the contentions of Respondent in respect
of the lapse of the Mandate, or any of its provisions, are res judicata
by virtue of the Judgment on the Preliminary Objections.
If notresjudlcafa, technically speaking, by virtue of the Advisory
Opinionof rg50, they are nonetheless 7es judicnta within the broad
VideChap. 1, para. 3. supra.
The various topics are: a generat outline of Respondent's legal argument in
of the previous Advisory Opinion; the effect of the Judgment and Opinions on the
Preliminary Objections; the origin and contents of the Mandate; and the general
pnnciples applicable idetermining whether particular provisions of the Mandate
stiii exist (i.e.. the principles of interpand implication, and the legal rules
affecting relationshibetween States but operating independently of their consent,
express orirnplied).
II, pp98-103.
' IV,p.522.
As to whichvideChap. III. para.-6and 46-49; and Chap. IVB.para. 14infra.I6 SOUTH WEST AFRICA
meaning of the doctrine, on the basis of the Adviçory Opinion. The
rationale of the doctrine is that there must be an end to litigation.
. . . It is fair to Say that Respondent has had its day in Court on
these issues l."
For the reasons given int.he Counter-Mernorial 2,it iç submitted that
Applicants' earlier concession is to be preferred to their second thoughts.
C. OriginandContentsof the Mandate
3. Reference was made above to Applicants' allegations regarding
divergent positions supposed to be maintained by the Parties hereto on
"the nature and essential principles of the Mandate" 4.Those of the "key
issues", as singled out by Applicants, which relate to topics dealt with
under the above head in Chapter III of Book IIof the Counter-Mernorial,
will be considered herein, leaving the remainder for treatment in other
sections of this Rejoinder.
1. WHETHER THE R'IANBAS TESTEM "REPRESENTED A VICTORY FOR THE
OPPONENT SF THE PRINCIPLE OF ANNEX.%TION"
4. Dunng the latter part of the First FVorld War and in the negotia-
tions and discussionspreceding the conclusion of theTreaty ofVersailles,
certain States (including Respondent) were in favour of the annexation
of certain ofthe former German colonies. Other States were in fyour of
one or another form of international controi over al1such colonies. In
the result, agreement was reached on the basis of the mandate system
as embodied in Article 22 of the Covenant of the League of Nations 6.
When regard is had only to thefacts that ail the former German colonies
thus obtained a separate international status as mandated territories
and were made subject to the supervision provided for in the Covenant,
it is correctto Say that the mandate system "represented a victory for
the opponents of the principle of annexation" 7. Indeed, Respondent
stated in its Counter-Memorial:
". . . it seemç clear that the various proposals which preceded the
Mandate System as actually agreed upon, ail 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
5.On the other hand, when regard is had to the division of mandates
into three classes, and particularly to the content of the C Mandates,
it beconles apparent that the "full power of administration and legsla-
tion" granted to the Mandatories, empowered them in the latter
instance to exercise most of the attributes of sovereigntp in the day-to-
IV, p. 552.
IIpp. 98-103.
Ibid.pp. 104-111.
VideChap.1,para. 2,supra.
IV,p.232. '
Vide I- A =<-1I.
1,p.33and IV,p. 232.
a IIa.169.
~x&ess&n used in C Mandates to define the governmental power exercisable,
subject tothe mandate, by theMandatories. Vide ,g., Art.2 of the Mandatefor
German Sotitli-lestAfrica. REJOINDER OF SOUTH AFRICA I7
day administration of the mandate& territories. Respondent submits that
the grant of such wide powers resulted in a situation in which CXandates
were, in their practical effect, not far removed from annexatil.
6.Whether in its totality (i.e., taliing account of the separate inter-
national status of a mandated territory, of the Mandatory's account-
abilityto the Council of the League of Nations and, on the other hand,
of the extent of the Mandatory's powers of administration and
legislation) a Chlandate could be said to be close to or far removed from
annexation, is a matter of opinion, evaluatian or appreciation, and the
answer codd largely depend on whichaspect ofthe Mandate isemphasized
for the purposes of the çubject under discussion. By itself, this question
is not of any importance. ?\'bat is cIear-andthis was the point sought
to be made by Respondent-is that when al1aspects are considered, the
mandate system could not fairly be described aç "a victory for the
opponents of the principle of annexation" or asa victory for anybody
e1se=.In the words of the Counter-Memonal "[a] compromise can hardly
be regarded as a victory for either sid2.
That the mandate system indeed represented a compromise between
. conflicting interests can hardIbe doubted. It is in Respondent's sub-
mission established not only by the authorities and historical facts
referred to inits Counter-Memoria13, but also by a further authority
quoted by Applicants (in another context) as saying that the Nandate
for South West Africa-
"... conçtituteda new institution set up under Article21 of the
Covenant as an historic compromise betweenextremely complicnted
interests'.(Italics added.)
7. -4s pointed out in the previous paragraph, the extent to which the
C Mandates, taking into account their various aspects, approximated
to annexation, is in itself of no particular importance. Applicants have,
however, sought to use Respondent's submission that, as far as the
ordinary powers of administration and legislation were concerned,
such approximation was close, to draw linwarrantcd inferences about
Respondent's attitude in regard to other aspects of the Mandate.
Examples of this will be given in the next succeeding paragraphç.
II. WHETHER RESPONDEW NT .4s OBLIGE DN TERMS OF THE ~IASDATE
TO LEAD THE INHABITAN TS THE TERRITOR YOWARDE SVENTUAL
SELF-DETERMINATION
S. Applicants suggest that there is an inconsistency between Respond-
ent's view that itspotvers ofadministration and legislation under the
Mandate approximated to those that ~vouldhave existed pursuant t.0
annexation, and acceptance by Respondent of a duty to lead the peoples
of the Territory towards eventual self-determinati5.The fallacy in this
reasoning is obvious.
Even full annexation of a temtory, and the esercise of complete
sovereignty over it (ana fortioriany situation falling short thereof, such
'VideII, pp9-15and p.95 '(para128).
1,p.33and 11,p.15(para9.).
-1.pp. IO-15.
M. Palacios, a memberofthPermanenM tandate sommissionP,.M.C., Min.,
XXVI, p.164. IV,p.252.
IV,pp.238-240. 586.18 SOUTH WEST AFRICA
as one "not far removed from annexation") wouId clearly not be in-
consistent with the recognition of a duty, legal or otherwise, to lead its
inhabitants towards self-determination, self-government or even inde-
pendence. In this regard, very pertinent illustration is afforded by Article
73 of the Charter of the United Nations, in terms of which those Members
of the organization who possessed colonies, undertook "to develop self-
government, to take dueaccount of the politicalaspirations of the peoples,
and to assist them in the progressive developrnent of their free political
institutions".Nevertheless the sovereignty of these members over their
colonies was not, and could not be chalienged or disputed.
9.In fact, Respondent has acknowledged in these proceedings that the
Mandate, in requiring the Mandatory to promote to the utrnost the
material and moral well-being and social progress of the inhabitants of
the Territory, thereby embraced, as one of the facets of well-being, the
ideal of political advancement of such inhabitants towards ultirnate self-
determination l.And more recently Reçpondent, in pursuance of its-often
expressed purpose of continuing to administer South West Africa inthe
spiritof the Mandate, gave special consideration to the manner in which
the objective of self-determination for the peoples of South West Africa .
could best be achieved 2.
III. WHETHE RHE MANDATE TERRITOR POSSESSED
A SEPARAT INTERKATION SATATUS
IO. -4further example of fallacious reasoning on thepart of Applicants
(allied withincorrectfactual allegations)isfound in the supposecl relation-
ship between Respondent's adrnitted view that the powers of administra-
tion granted by the Mandate were in effect close to those supervening on
annexation, and Respondent's alleged attitude towards the separate
international statris of the Territory. Applicants' allegationsin thiçregard,
and the conclusion they draw therefrom, are found in one paragraph
which reads :
"Respondent's current contention that the Mandate (now asserted
to have lapsed in toto)was, in any event, 'not far removed frorn
annexation' thus reflects its continuing and long-standing posture of
denial to the Territory of a separate international status. The
conclusion is inescapable that Respondent's purpose and motive
has been, and remains, that of incorporating or annexing the
Territorv .. .3."
Since 1915 Respondent has been in effective control of the Territory
and has carried on its administration. If, as ApplicantsSay, Respondent's
attitude has been a"continuing and long-standing" one of "denial to the
Territory of a separate internationalstatus",then surelv there would have
been a completed annexation, real or purported, of the Territory, not
merely "a purpose or motive .. . of incorporating or annexing the
Territory" which is, according to Applicants, still being pursued in a
piece-meal and devious manner 4. In fact, as has been shown in the
lVédeIV, p. 70.
* Vide ibid., 213.
IV,p. 576.
+ At IV, p. 591.Applicants allege that implementatofncertain othe recom-
poration or annexation of the Territory".uld involve a step toward incor- REJOINDER OF SOUTH AFRICA I9
Counter-Memonal ',Respondent has always respected the separate inter-
national status of South West Afnca and continues to do so exactly as if
the Mandate were still in force.
IV. WHETHE RHE "SACRED TRUST" AND "TUTELAGE P"INCIPLES
G.WEKISE TO LBGAL OBI.ICATIONS
I1. Associated with the above instances of faulty iinderstanding or
rendering of Kespondent's arguments, and fallacious deductions there-
from, is a further assertion by Applicants. They Say that Respondent
denies that the "sacred trust" and "tutelage" principles, embodied in
Article 22 of the Covenant, gave rise ta legal obligations on the part of
the Mandatory and that Respondent construes the second paragraph
of Article z of the Mandate-
". ..as not ernbodying obligations of a legal nature, butas indicating
merely 'the objective to be pursued by the Mandatory, or thesflirit
with whichheshozild bsimbued, in exercising his power of adrninistra-
tion and iegislation'3".
Responderit's argument in this regard is later rendered as follows:
"Article z, paragraph z, does not ...create.or embody obligations
of a legal nature, but is assertedly a merely political or moral
exhortation; this argument Respondent seeks to reinforce by refer-
ence to the generality of the terms of the Article '."
To counter this argument allegedly used by Respondent, Applicants
devote considerable space to establish the self-evident and undisputed
proposition that-
". ..the Mandates, including the Mandate for South iVest Africa,
mere conceived and executed as legally biiiding instruments-as a
whole and in each of their parts ... ".
In fact, of course, Respondent has never disputed that the mandate
instrument-including Article 2, paragraph 2,thereof-read in the light
of Article 22 of the Covenant, created legal obligations.
In their attempt to ascribe such acontention to liespondent, Applicants
rely on the use by Respondent of expressions regarding the "idealistic or
humanitarian objectives", or "the spirit'' with which aMandatory should
be imbued, rvhich are set forth in the opening paragraphs of Article 22 of
the Covenant and paragraph 2of Article 2 of the Mandate 6.In the pas-
sages quoted by Applicants, Respondent was, however, not purporting to
distinguish between parts of the Mandate orof Article 22 of the Covenant
on the basis that some parts created legal obligations and others not.
Clearly the mandate instrument as a whole, read in the light of the
whoIe of Article 22, gave rise to legal rights and obligations. But in order
to determine the content, the nature and the extent of such rights and
obligations, due weight must be given to each of the parts of these ~OCU-
IV, in particulap. 68 (paras.4and 5)and p. 87 (para.4).Vide also PartV.
infra.
IV,pp 232-233.
Ibid., pp. 244-24Vide also pp. 232-237 and p478-483
Ibid., 477.
5Ibid.,p. 480.The discussion rangeover pp.478-483.
Ibid., pp. 232 and 244-245.20 SOUTH WEST AFRICA
ments. For the purposes of such interpretation, it can hardly be doubted
that the "sacred trust" and "tutelage" principles, to which effect was
given in Article 2 of the Mandate, relate, in the words of an authority
much relied upon by Applicants, ". . . to the fundamental objective of
the mission undertaken by the Mandatories . .." l or that, as another
authority stated in a report unanirnously adopted by the Council of the
League of Nations,
"[plaragraphs I and z of Article 22 have indicated the spirit which
should inspire those who are entrusted with administering peoples
not yet capable of governing thernselves .. .2".
In expressing this concept, Respondent has, inter alia, used the expres-
sions "rnain objective" 3, "over-riding objective" 4, "basic principle or
objective" and "idealistic or humanitarian objectives" 6.The rnere fact
that the overriding objective of the Mandate was of an idealistic or
humanitarian nature, does not, of course, mean that the provisions
relative thereto were devoid of legal effect. Applicants indeed concede
this, e.g., when they Say: "Although the term 'sacred trust of civilization'
obviously imports a high moral pnnciple, it was intended to have legal
significance as well7 ".
12. There is consequently no dispute between Applicants and
Respondent as to whether Article 2 (2) of the Mandate, read in the light
of Article 22 of the Covenant, created legal obligations.
The only issues in this regard are:
(a) whether the Court (as distinct from the Council of the League
assisted by the Permanent Mandates Commission) possessed
jurisdiction to pronounce on aIIeged contraventions of the Article;
and
(b) ivhat legal basis or norm was to be applied in determining xvhether
there had been a violation of the obligation laid down by the
Article.
On neither of these issues, as will be dernonstrated below 8,does
Respondent's contention expressly or by implication involve a denial of
the Iegally binding nature of the obligation imposed by Article 2,para-
graph 2, of the Mandate.
13. The first main issue then is whether the Court was, under the
compromissory clause, Article 7, paragraph 2, vested with jurisdiction
in respect of allegations of contravention of Article z, paragraph 2, of
the Mandate. Respondent contends that only the Council of the League
(assisted by the Permanent Mandates Commission), and not the Perma-
nent Court of International Justice, was intended to have jurisdiction to
entertain such matters. Applicants submit that the Court alço was vested
with competence in this regard. Accordingly the dispute between the
Parties does not relate to the existence or otherwise of legal duties in terms
The Mandates System4rigin-Principles-Appltcatio~z (1945)p~.53.
Report of M. Hymans dated 5 Aug. 1920.L. of N., O.J., 1920 (No. 6).pp.
339-340-
Vide,e.g..11,pp. 385and 386.
Ibid.p. 386.
Ibid.p..169 (para.9).
Ibid.p. 104 (para. 13)and p. 169 (para.8).
' IV,p. 233.
Videparas. 13-14. ilzfra. REJOINDER OF SOUTH AFRICA 21
of Article 2, paragraph z, of the Mandate, but merely asto the nature of
the supervisory machinery provided by its authors to ensure cornpiiance
with such duties. It is of course obvious that a lack of conipulsory juris-
diction on the part of the Court would not have rendered the Article
devoid of legal effect, particularly since its enforcement was entmted
to the Permanent Mandates Commission and the Council of the League
of Nations. This trite proposition of law js apparently, however, not
iecognized by Applicants, as appears from the gloss put by thern on
liespondent's argument in the respect set out hereunder.
Thus Kespondent said:
". .. attention has been drawn to the wide and general provisions of
Article 2. In this respect it has been subrnitted 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 adjuclicate on disputes arising
from an alleged breach of the obligation to '... promote to the
utmost the material and moral well-being and the social progress
of the inhabitants of the territory ...' For the reasons set out, it
was szrbmitted tht the azdthors of the Mandate clid not intend the
Court to have jrtrisdiction to e~tterlainsuch disfiutes, the Permanent
Mandates Commission andtheCouncilof theLeaguebeinglhetechnical
and $olitical bodies specialiy claargedwith the function of dealing witk
strch matters l." (Italics added and footnotes omitted.)
This submission is rendered by Applicants as follows:
"Article 2,paragraph 2,does not ... create or embody obligations
of a legal nature, but is assertedly a merely political or moral
exhortation; this argument Kes$ondent seeks to reinforce by veference
luthe generality of the terms O# th Article *." (Italics added.)
Resporident will deal at a later stage with Applicants' argument in
reply to their above-quoted rendering of Respondent's submission 3.
Its concern at the present stage iç only to point out that the rendering
itselfis totallj.wrong.
14. The second issue in regard to Respondent's obligations under
Article 2, paragraph 2,of the Mandate relates to the legal basis or norm
which was to be applied in determining whether there had been a violation
of such obligations. Respondent contended that Article 2, paragraph 2,
read in the light of the Covenant, required liespondent to use its "full
power of administration and legislation" for the purpose of prornoting
to the utmost the material and moral well-being and the social progress
of the inhabitants of the Territory 4. The consequence of this was, in
Respondent's submission, that the particular method to be employed
towards achieving this purpose was left to Respondent's discretion, and
that legislative or administrative action could therefore violate Article 2,
paragraph 2, onlÿ if actuated by a motive or intent other than one to
achieve such purpose 4.That Respondent's duty to use its powers for
the purpoçe of promoting the interests of the inhabitants was a legal one
l 11,pp.384-385V .ide alsoibàd.pp. 183-184.
' IV, p477-
Vide Part III, seC, paras4.-19,intra.
+ Vide II,pp.384-392. 22 SOUTH WEST AFRICA
(and not merely a "political or moral exhortation") was always con-
ceded l.
In a later chapter of this Rejoinder Respondent will demonstrate that
Applicants indeed never reply to Respondent's above submission 2. At
the present stage Respondent wishes to emphasize only that the true
issue between the Parties in this regard does not relate to the question
whether Respondent's obligation in terms of Article 2, paragraph 2,
was of a le al nature or not, but merely as to the basis or norms to be
applied in fetermining whether there had been a violation of such obliga-
tion. In other words, it is admitted that the obligation was a legal one,
but the content of the obligation isin dispute.
Vide, e.g., II. p.i 16 (para. 4) and ibid., pp. 384-392. In the latter passage
explicit referenceis made to the "obligation resting on Respondent in terms of
[Article2. paragraph 21 ,., to use its powers of Iegislation and administration for
the purpose of promoting to the utmost the well-being and progress of the inhabi-
tants" (Dbidp.a,ra. 13. p. 390) and also to the proof that would be required "to
establish a breach of this Article" (ébid.).
Vide Part III, sec. C. para.25.infra. CI-IAPTERIII
THE MANDATORY'S PROCEDURALOBLIGATIONS
A. Applicanb'Approach to the Issue
r. Respondent's argument dealing with the lapse of the Blandatory's
procedural obligations and of the Mandate as a whole was summarized
as follows in the Counter-Mernorial:
"(a) The provisions for supervision of Aiandatory administration by
organs of the League were dependent for their operation on the
existence of the League of Nations.
(6) 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 iounders,
capable of existence without the said provisions.
(d) On the basis of the criterion statedin (c),Respondent subrnits that
the ?ilandate as a whole has lapsed.
fe) In the alternativeto (cl),if the Mandate continues in force, Res-
pondent, for the reasons stated in (a) and (b), submits that it does
so only in respect of aspects which were not by their own terms
dependent upon the League of Nations, and thus, in particular,
withoiit any obligation on Respondent's part to subrnit to super-
vision by any international organization or body l."
Respondent's argument, as thus summarized, was developed in Chap-
t ers IV and V of Book II of the Counter-Mernorial. Even a cursory
perusal of the said chapters would have rendered it clear that Respond-
ent's basic argument is that the provisions for supervision of Mandatory
administration becarne inoperable or impossible of performance on the
dissolution of the League, and consequently lapsed, irrespective of
whether the Mandate remained in operation in other respects. On Ihe
$remise ofthelafise ofsupernision,Respondent further submitted that the
Mandate as a whole fell away 2.
2.With such an expIicit and clear statement of Respondent's conten-
tion, it is surprising to finditcornpleteiy distorted by Applicants at the
very outset of Chapter VI of the Reply, dealing with Applicants' Sub-
missions I,2, 7 and 8. Thus one finds the following passages:
". . . starting from th#remise that 'theMandate as a whole has lapsed',
Respondent contends that itç '... obligations to report and account
to, and subrnit to the supervision of, the Council of the League of
Nations, lapsed upon rtissolution of the League .. .'3"; (Italics
added.)
' Vide also ibid., pp. 164 (pa74 conclusions regarding the Pfocedurul Oblig-
ations),165 (para.1).174(para. 18),256and 257 (submissions).
IV, p. 52 11tisperhaps even more surprising that Applicants rely11,pp. 97.
163 and 182for this version of Respondent's argument. SOUTH WEST AFRIC.4
24
and
"Respondent's arguments in Book II of the Counter-Mernorial
center essentially on two points: that the Mandate has ceased to
exiçt; and that Respondent, accordingly,has no obligation to report
to the United Nations for its administration-of the territory of
South West Africa, 01-in any ofher manner submit to its super-
vision '." (Italics added.)
In other contexts Applicants show an awareness of the triie nature of
Respondetit's submissions. Thus, in dealing with what they aifege to be
"fatal inconsistericies" in Respondent's "central contentions", they show
an appreciation of Respondent's contention that even if the Mandate is
still in force, its provisions relating to supervision have lapsed *. And
Iater they Say correctly ;
"Respondent contends that if, as it asserts, the duty of inter-
.national accountability lapsed with the dissolution of the League,
it is 'impossible for a Court to presume that the authors of the
Mandate would have intended it to continue in existence. . .' ."
Referenceisalso made by Applicants to Ixespondent's"argument that the
lapse of Article 6 of the Mandate collapsed the Mandate as a whoie" '.
The fact that Applicants commence the presentation of their reply with
a falserendering of Respondent's submissions, can hardly be taken as an
indication of i nu chconfidence on their part in the strength of their own
argument. As \vil1be shown, this is a feature which is also encountered
elsewehere in the Reply.
3. Respondent's main subrnission then is that the provisions inArticle
22 of the Covenant and the mandate instrument (hereinafter jointly
referred to as "the mandate documents") relating to the supervision of
Mandatory administration by organs of the League, became inoperable
upon the dissolution of the League, and consequently lapsed. It willbe
recalled that the provisions in question were the following, viz.,
(i} Article 22 (7) of the Covenant:
"In every case of mandate, the Mandatory shall render to the
Council an annual report in reference to the territory comniitted to
its charge."
(ii) Article 22 (9) of the Covenant :
"A permanent Commission shall be constituted to receive and
. examine the annual reports of the hlandatones and to advise the
Council on al1matters relating to the observance of the Mandates."
(iji)Article 6 of the Mandate for German South-West Africa:
"The Mandatory shall make to the Council of the League of
Nations an annual report to the satisfaction of the Council, contain-
ing full information with regard to the territory, and indicating
the measures taken to carry out the obligations assumed under
Articles 2,3, 4 and 5."
Theçe provisions made reference to specific supervisory orgnns only
IV, p. 5zr.Vide al50 p. 5-23.
2Ibid..p.240. Theyfail to note,however, that the inconsistentcontentionswere
advanced in the alternativeby Respondent. Vide para. 24. infra.
+Ibid., p540..Vide alsop. 534, footnote4. REJOINDER OF SOUTH AFRICA 25
(viz. the Council of the League and the Permanent Mandates Cornmis-
sion), which organs, upon the dissolution of the League, ceased to exist.
Applicants nevertheless submit that Respondent's procedural obligations
continue in force as obligations to report and account to the General
Assembly of the United Nations, which must for the purpose of the said
obligations be regarded as the new supervisory authority l.The crucial
question then is: On what legal basiscam such afi auerved substituto ifon
supervisory organs besaid to have been eflected?Consideration was given
in the Counter-Mernoria1to the following bases, which, in Respondent's
contention, would cover every possibility in the circumstances of the
present case:
(a) the interpretation of the express provisions of the mandate docu-
ments with reference to both the meaning of the words used and
the light thrown thereon by surrounding circumstances 2;
(6) the possibility of implied terms or intentions in the mandate pro-
visions ;
(c) the possibi\ity of an agreement, expressor implied,in 1945-19 4r6
thereafter 4;
(d) the possibility of succession by virtue of an objective principle of
international laiv
After dealing fully with each of the above possibilities in the light of
al1 available information and relevant considerations, Respondent con-
cluded that substitution of the supervisory authority did not take
place.
4. In their Reply, Applicants avoid any attempt at providing a syste-
matic answer to Respondent's contentions regarding the alleged substi-
tution of supervisory organs. This avoidance they seek to 'ustify on t~o
jiyounds which, however, rest on two false premises. The hrst premise is
the above mentioned incorrect rendering of Respondent's argument, Le.,
". ..that the hlandate haç ceised-to exist; and that ~es~ondent,
accordingly.has no obligation to report to the United Nations. .. 6"
(Italics added.)
This distortion then leads to the second false premise, namely that
Respondent's contention-
". ..that the Mandate, and the obligation to respond to international
supervision, have lapsed, ...fis based on arguments which] ... are
the same as those twice before considered in 1950 and 1962 '".
A cornparison of the arguments now used to establish the lapse of
supervision by organs of the League, and the lapse of the hlandate as a
ivhole, with those used in 1950 and 1962 in respect of the issues then
before the Court, demonstrates the incorrectness of Applicants' second
premise, as appears from the next succeeding paragraphs.
5. In 1950, the argument on the lapse of the Mandateas a whole was
l VadeApplicants' SubrnissionNo. 2and No. 7 (1,pp.197-198r )eadwith 1,pp.
52-53and 95-103.
2 II. pp119-122.
Ibid., pp. 122-124.
Zbid., pp. 124-163.
IV,dp.52pI.Videparas. Iand 2.supra.
Ibid..p.522.26 SOUTH WEST AFRICA
based on the submission that the Mandate was a contractual relationship
which lapsed on the faliing away of the League as a party do a mandak
contracl l. Kespondent's present argument, as summarized above =, is
based on different considerations, viz.,on the lapse of supervision, and
on questions of divisibility. Regarding the issue of supervision, this Court
now has the benefit of much fuller information than was presented in
1950 3.In addition, further light has been thrown on this issue by authori-
ties on international law, and by the Judgment and Opinionson the Pre-
liminary Objections '.For ail these reasons, Applicants are wrong in say-
ing that the arguments now used are the same as those considered in 1950.
6. As far as the 1962 proceedings are concerned, the question whether
the Mandate had lapsed or not, was not then dealt with at al1 by Res-
pondent. On the contrary, before arguing the merits of its Preliminary
Objections, Respondent stated explicitly :
"No submissions are advanced about the questions whether the
Mandate, in the wider sense of being an institution, lapsed upon
dissolution of the League or survived the League . . . ="
This attitude was maintained throughout 6.
Applicants are, however, correct in saying that argunie~it was presen-
ted to the Court in 1962 on the question whetlier liespondent's proce-
dura1 obligationslapsed on dissolution of the League, but their averment
that this issue wns decided against Respondent is without foundation '.
In itç Counter-hlemorial Respondent carefully analysed the Judgment
and Opinions, and came to the conclusion that-
"... a number of Members of the Court found it unnecessary to deal
with the issue relating to Article 6 of the Mandate. However, four
Members of the Court (Judges Bustamante, Spender, Fitzmaurice
and van Wyk) expresscd a clear view that Article 6 had lapsed on
dissoIution of the League. The other eleven Judges did not deal ex-
pressly with this point; but the findings or reasoning of seven of
them areto a greater or lesser extent inconsistent with any siirvival
of the Mandatory's procedural obligations. They are Judges Alfaro,
Badawi, Moreno Quintana, WelLington Koo, Koretsky, Jessup and
Mbanefo. In respect of the remaining four Judges (i.e. P,resident
Winiarski and Judges Basdevant, Spiropoulos and Morelli) no indi-
cations are in this regard afforded by their Opinions
Neither this conclusion, nor the argument presented in support there-
of, is dealt with in the Reply. Instead, Appiicants content themselves
with making the unmotivated and inaccurate statements referred to
above regarding the purport and effect of the 1962 Judgment g.
Only inrespect of the scope and purpose of the compromissory clause,
lInternational Slalusof South-Wesi Africa. Pleadings, Oral Arguinents, DOGY-
menls: Advisory Opinion ofJuiy rrth, 1950,pp.276-277.
' Vide II, pp. 124 (para. 1145-148 and para.48,infra.
''IIp. 214 (para. D).(parzo),148-15a 1nd I52(para. 55). Videalso para.ibifra.
Vide,e.g., 1pp. zgg(para. 3)and 360 (para. 54:OralProceedings.2 and 3 Oct.
1962 and vide II, pp. 165-166.
IV,PP. 522, 539and 550.
'11,p. 153.
Videatsopara. 47, infra. REJOINDER OF SOUTH AFRICA 27
and the issue as to its present existence, are the Judgment and sorne of
the Opinions in the 1962 proceedings in conflict with Respondent's
argument in the Counter-Mernorial. These topics, which were of funda-
mental importance for the jurisdictional questions decided in the Yreli-
minary Objections proceedings are, however, of only indirect relevance
to the present issuesl.In particular, they are of no relevance at a11to the
question whether Respondent'ç procedural obligations lapsed on disso-
lution of the League.
7. It is, then, on the above false premises relating to the nature of
Respondent 's subrnissions, and the effect of the previous Judgment and
Opinions, that Applicants seek to present a twofold justification for
their failure to deal systematically ~viththe issue regarding Article 6 of
the Mandate. Firstly, thcy state that, in re-arguing matters previously
decided in the Judgment or Opinions, Respondent ".. .does not merely
maintain positions inconsistent with several of these Opinions. In many
instances, Kespondent singles them out for critical analysis" 2.
Applicants then define their attitude to this matter as follows:
"tlrithout suggesting that Respondent içnot at liberty to proceed
in this manner, Applicants would prefer not to join issue with the
Counter-Alemonal in its critical analyses of Opinions by members
of this honourable Court. It is one thirig to maintain positions in-
consistent with Opinions expressed by Judges now sitting. Appli-
cants themselves will respectfully maintain vie~vs in this Reply
that may not altvays be consistent with al1 these Opinions. It is
quite a different thing to place such Opinions in controversy. Ap-
plicants do not believe that any useful purpose would be served by
replying tosvhat the Coiinter-Mernorial has to say about them =."
Respondent does not understand what Applicants mean by the ex-
pression "to place such Opi~lionçin controversy". Where Respondent
has made submissions which are inconsistent with views of recognized
authorities on international law referrcd to in these proceedings, Res-
pondent has conceived it its duty to point out to this Court why, in its
submission, such views should not be accepted. It is submitted that a
party would be entitled to disregard or ignore an adverse expression of
opinion by an authority on147 where the latter's standing issuch as to
render hisopinion valueless. A contrario, where a view is expressed by as
eminent an authority as a judge of this honourable Court, Respondent
considers that it would not only be failing in its duty towards the Court,
but would be guilty of disrespect towards the learned judge concerned,
by adopting a contra9 attitude without indicating the grounds on which
its contention disagrees with such view. Thereby Respondent does not
wish to place any opinion "in controversy"-it merely seeks to assist thc
Court by analysing the reasoning which has led such eminent la~vyersto
express views inconsistent with Respondent's contentions, and thus to
facilitate the Court's task of determining which conclusion is correct.
Indeed, the ascertainment of the real issues between the Pàrties, and the
weighing ofthe merits of their rival contentions, would in Respondent's
submission have presented much less difficulty if Applicants shouId also
l Vide II. Book II, ChapV B and Part II. Chap. IV B. paraI.infra.
IV,p. 522.28 SOUTH WEST AFRICA
have presented "critical analyses" of arguments used by judges who
rnaintained views inconsistent ulth their contentions.
S. In the second instance, Applicants do not stop at prefemng "not
to join issuewith the Counter-Mernorial in its critical analyses of Opin-
ions bp rnembers of this honourable Court" l; they also apparently
prefer not to join issue with Respondent on the major part of its
argument which either contains no reference to, or expresses respectful
agreement with, Opinions of members of this Court. Their purported
justification for this is that-
". ..inasmuch as the issues of lapse of the Mandate and lapse of in-
ternational accountability already have been presented to the Court
by the parties, it is difficult for Applicants to deal with these issues
without engaging in mere repetition of arguments already made in
the Preliminary Objectionsphase of these Cases =",
and that they ". .. deem it appropriate to refrain in their Reply from
a merely mechanical repetition of the replies previously given to Res-
pondent" arguments. .."3.
The weakness in this position isthat Applicants have never given a
systernatic reply to Respondent's arguments regarding the lapse of
Article6 ofthe Mandate or ofthe Mandate as a whole. In the Prelirninary
Objections proceedings Applicants' agent surnrnarized their attitude as
follows :
"But, &Ir. President, it is not the Applicants who 'rely on' United
Nations succession. The Court itself decided that issue in the Advi-
sory Opinion of 1950. We draw the necessary inference from the
Court's Opinion. We do lrot bearthe bburdenof sustaining thevalidity
ofth Opinion of th IntmnationalCourtofJustice 4." (Italics added.)
Although in his Rejoinder Applicants' agent belatedly sought to add
some'qualification to this staternent, it is still clear that hiç argument
relating to the issue of the Alandatory's procedural obligations was
based largely, if not wholly, on the assumed correctness of the 1950
Opinion 5. In their written Observations in the Preliminary Objections
proceedings, Applicants had raised a contention regarding a "principle"
or "doctrine" of "succession", and had developed it to some extent,
although not fully or systernatically, with reference to an "organized
international community" 'jHowever, as has been seen ',after this con-
tention had been analysed and fully dealt with by Respondent in its oral
statement 8,Appiicants' representatives refrained from attempting to
support it, or even from mentioning it at all, in the oral proceedings.
Also at the Prelirninary Objections proceedings, therefore, Applicants
failed to answer on merit Respondent'ç arguments directed at showing
that the conclusion arrived at in the 1950 Opinion with respect to the
issue arisingfrom Article 6 ofthe Mandate,was rvrong.
IV,p.522.
Ibid., pp303-304.
' Ibid., p. 304.
Oral Proceedings, 1Oct. 1962.
ibid.22 Oct. 1962.
1.PP-443-444 and 444-449.
II,p.122 (para 14) andp. 164 (para. 72).
Oral Proceeding5 s,Oct.1962. RE JOIYDER OF SOUTH AFRICA 29
The further question whether the Mandate was capable of continued
existence despite the absence of the supervisory machinery provided
for in Article 6, did not anse in the Preliminary Objections proceedings,
and was not then argued by Respondent l.
9. Rather than provide "the merely mechanical repetition" referred
to in the previous paragraph, Applicants adopt what they term ". .. a
somewhat different approach to the task of presenting to the Court
theirarguments concerning thisaspect ofthe ments ofissuesin dispute" 2,
namely an "... endeavour ... to identify the nature [of?]and apparent
explanation [for?] underlying differences between the parties" 2.
These underlying differences they identify as ". . . essentially dif-
fering views in respect of the nature of the obligation of international
accountability" 2, and ". .. diver ent major premises concerning the
essential role of accountability un8 er the Mandates System" 3.
This then is the issue on which Apphcants choose to join battle, recog-
nizing, at the same time, that the deciding factors are, ultimateiy, "con-
clusions concerning interpretationç of the relevant texts" 2. -
IO. LVhat then are the "divergent major premises" to which Applicants
attach so much importance?The foIlowingpassage appears, on analysis,
to reAecttheir conception thereof (inso far as the issue relating to Article
6 is concerned) :
"... in performing its supervisory function with respect to Man-
dates, the League of Nations was .. .acting not as party to a con-
tract, but 'as an organized international community'.
The United Nations has replaced the League of Nations as such
'organized international community' .. .4" [Footnoteomitted.)
From these premises follows Applicants' crucial conclusion, viz.,
". . . Respondent's obligation of international accountability, accord-
ingly, is owed to the United Nations in that capacity" '.
II. The words "acting not as a party to a contract" refiect an apparent
misapprehension on Applicants' part as to the true content of Respon-
dent's submissions regarding the lapse of Article 6 of the Mandate. This
apparent misapprehension is also found elsewhere in the Reply.
Thus Applicants refer to-
"Respondent's contention that its obligations were merely con-
tractualwith the League of Nations and lapsed when the League
terminated.. .. 3", (Italics added.)
and to "Respondent's conception of the relationship between itself and
the League ... asone of mere contvact .. ." 5.(Italics added.) This islater
ampiified as follows:
l Vide para. 6,supra.
IV, p.523.
Ibid., p524.
+ Ibid., p. 539. Applicants appeq to suggest that a further "divergent major
premise" isfound in the Parties' respective attitudes towards the question whether
the "sacred trust" and "tutelage" principles gave ristolegal obligations(videIV,
p. 524) no argument is,however. explicitly basedon this premise, and, as has been
noted above (videChap. II. parasI 1-14.supra), the alleged divergencebetween the
PartIbid.p.t534.esin this respect is completely imaginary. SOUTH WEST AFRICA
"Respondent contends that its obLigations to report on its admin-
istration of the Mandate and the right of the League to supervise
and verify its observance of these obligations, were undertczkingsof
a contractualcharacter. It argues that the obligation to report and
the right to supervise were intended to give practical effect to the
words 'mandatories on behalf of the League' in accordancewith the
$rinci$le of'mandaturn', whichisa contractualprz'nciple. The sugges-
tion is that the League delegated authonty to the mandatones and
received in exchange their promise to report to the League and to
submit to its supervision. On this basis, Respondent contends that
on dissolution of the League, the notion of 'mandatories on behalf
of the League' fell, and with it Respondent's undertaking to report
and to submit to international supervision l." (Italics added.)
Applicants have not disclosed the source from which they purport to
derive this version of Respondent's argument =. This honourable Court
wiIl be aware that Respondent's submissions regarding the lapse of the
League's supervisory functions were based upon inoperability or impossi-
bility of performance, not on any contractual lapse 3. Indeed, Respon-
dent's contentions on this aspect did not advert at al1 to the question
whether the League of Nations ever was a contractual party to the
Mandate, since this was not a relevant issue in respect of such contentions.
In the section of Respondent's argument where this issue was relevant
(i.e., in the chapter dealing with the lapse of the compromissory clause),
Respondent argued that the Mandate never was an international con-
tract (a "treaty or convention") 4.And if the Mandate were to be held
to have been a "treaty or convention", Respondent left the question open
whether the League of Nations was ever a party thereto =.
12. Respondent's contention therefore is that the contelatof the obli-
gations accepted'by it,irrespective of who, ifanybody, was a contractual
party to the Mandate, involved supervision by specific organs, viz., the
Council of the League of Nations, assisted by the Permanent Mandates
Commission. The content of the obligations can be determined only by a
process of interpretation, i.e., the ascertainment of the intentions of their
authors as expressed or implied in the documents embodying such obli-
gations. Consequently, ifApplicants' arguments were to be relevant at al1
to Respondent's contention, they would have to be directed at showing
that interpretation of the documents concerned reveals obligations of a
content different from that contendedfor by Respondent. In other words,
Applicants must then submit that the Mandatory's procedural obliga-
tions were intended to be defined with reference to the organs of the
League of Nations in a special capacity, viz., as then constituting or
representing the "organized international community". This indeed ap-
pears to be the effect of Applicants' case 6. Thus they say that at the
' IV,PP. 537-538.
Respondentdid saythat accountability was imposed as a "feature" of "broad
resemblance" to the Mandatîrm institution (II,115. para.2).Perhaps Applicants
basetheir whole contention on this slender foundation.
Videpara. 1,supra.
Vide II, pp. 193-204.
Ibid.pp. 207-208,
Although, for reasons best known to themselves, they do not inform the Court
in somany words of their attitude in tharegard. REJOINDER OF SOUTH AFRICA 31
Peace Conference "[i]I was clearlyzcnderstood Oy al1concerned"that "as
a matter of international law, the well-being and social progress of [in-
digenous peoples in certain areas of Africa and Asia] would be the re-
sponsibility of the 'organized international comrnunity' " (italics added),
and also that "the Covenant vested responsibility in the organized inter-
national community" =;they refer to "international accountability" as a
"duty" which was "irnposed" 3, and as something "incorporated in
paragraphs 7 and g ... of Article zs of the Covenant" 3.And, finally,
as already observed, they deseribe the dispute between the Parties as
one concerning "interpretations of the relevant texts" 4.
Consequently, despite lack of a comprehensive explanation to that
effect, it seems clear that Applicants rely on an intention alieged to be
ernbodied expressly or by implication in the provisions of Article zz of the
Covenant (and, as a result, probably also in Article 6 of the mandate
instrument). In other words, they join issue ~4th Kespondent on the
application of the bases (a) and (6) set out in paragraph 3, supra, and
their contentions must accordingly be weighed against the considerations
set out by Respondent under the corresponding headings in the Counter-
Memorial. In addition, Applicants appear to rely to some extent on basis
effectedta substitution of supervisory organs by itself.saidThushavthey Say
that ,"consisfently withthe foregoing" (italics added),i.e., with their inter-
pretation of the mandate documents,
"... the proceedings at the period of the dissolution of the League
of Nations and the organization of the United Nations, manifested
the clear intention of al1 concerned to preserve and assure proper
discharge by the organized international community with respect
to its responsibilities toward the inhabitants of mandated terri-
tories5".
No reliance is, however, pIaced on basis (d), i.e., succession by virtue
of some objective pnnciple of international law.
To summarize: Applicants have chosen to join issue with Respondent
on its contentions regarding the meaning of, or implications in, the
mandate documents, and, to a lesser extent, on its arguments relating to
the events of 1945-194 t .is, accordingly, necessary to analyse the
material adduced by Applicants in support of their contentions, and to
place jt on the scales against the factors relied upon by Respondent.
This willbe done in the next succeeding paragraphî, dealing first with
the meaning of, or implications in, the mandate documents, and there-
after with the events of 1945-1946.
B. The Meaning of, or Implications in, the Mandate Documents
13.Applicants' "organized international community" argument may
be summarized asfollows:
' 11p. 233.
Ibid..p.534.
3Ibid., p. 538.
+ Vtdc para.g,supra.
IV,p. 539.32 a SOUTH WEST AFRICA
(a) The Covenant of the League vested responsibility in the "organ-
ized international community" to assure that Mandatories would
promote the well-being and social progress of inhabitants of rnan-
dated territories l.
(b) Accordingly, any reference in the mandate documents to the per-
formance ofsupervisory functions by organs of the League must be
construed as a reference to such organs in their capacities as con-
stituting or representing the "organized international community" *.
(c) Since the dissolution of the League of Nations, the obligations of
the Mandatory have been owed to the United Nations as the new
"organized international community" 3.
Itwill berecaIfedthat the provisions regarding supervision in respect of
Mandates by ogans of the League refer to such organs by name and
without any qualifications '.In order to arrive at the conclusion that
such organs acted merely in a special capacity (i.e., as constituting or
representing the "organized international community"), it would con-
sequently be necessary to read such an unexpressed intention into the
terms of the relevant documents. In this connection it must be borne in
mind that a tacit intent or consent may be implied only where it anses
necessarily or inevitably in the sense that al1other reasonable inferences
are excluded 5.And,when dealing with instruments such as the mandate
documents, there is a very much increased difficulty about deriving such
intent from sources dehors the instruments themselves. In this regard
reference rnay be made to the followingpassage from an opinion by Sir
Percy Spender, which, although dealingwith the United NationsCharter,
contains reasoning which is equally applicable to the instruments now
under consideration :
"Moreover the intentio ofnthe parties at the tiine when they
entered into an engagement will not always-depending upon the
nature and subject-matter of the engagement-have the same
importance. In particular in the case of a multilateral treaty such
as the Charter the intention of its original Mernbers, except such
as may be gathered from its terms alone, is beset with evident
diniculties. Moreover, since from its inception it was contemplated
that other States would be admitted to membership ... the intention
of the framers of the Charter appears less important than iptention
in many other treaties where the parties are fixed and constant and
where the nature and subject-matter of the treaty is different. It 1s
hardly the intention of those States which originally framed the
Charter which is important except as that intention reveals itseIf in
thetext. What isimportant is what the Charter itself provides ... 6"
IV, pp.233-242 and 534.
Ibid., pp.240 and 533-534. For a fuller discussion of the relationship, as dis-
closed in the Reply, between the "organized international community" and the
League; vide paras. 38-39, infra.
IV, PP.537 and 539.
' Videpara. 3, supra.
Ir. pp.II 1-112and references there given. Vide also Certain Expenses of the
United Nations (Article r7, paragrcrp2.of the Charfer), Aduisory UpiniorI.C.J.
Rcporfs 1962,p. 151 atp.159.
Advisovy Opinion. I.C.j. Reports 1962, p. 151at pp. 184-185. Vide also Lord hlch'air, REJOINDER OF SOUTH AFRICA 33
Inasmuch as the mandata documents by themselves do not give rise
to any necessary inference of the sort relied upon by Applicants, the
considerations stated in the above passage might well be regarded as
rendenng unnecessary any further enquiry as to the intentions of the
authors of the Mandate. Nevertheless Respondent does not propose
resting its argument purely on this basis, but will proceed on the same
lines as in the Counter-Mernorial and demonstrate that such further
enquiry does not invalidate, but on the contrary supports, the conclusion
reached on examination of the terms of the instruments themselves.
14. The first question which arises is: What is the content of the
provision sought to be implied? As Respondent wili indicate below,
Applicants have avoided any clear dehition of the nature or composition
of the "organized international community", or of its relationshi with,
successively, the League of Nations and the United Nations 8rgani-
zation '.However, whatever the "organized international comrnunity"
may be (or rnay have been), the baslc concept involved in Applicants'
argument, viz., that the League organs were assertedly intended to act
in a special capacity as constituting or representing some other entity
or concept, contains certain implications which, it is submitted, excIude
the possibility of any implied provision of the type contended for by
Applicants.
The legal device ofentrusting functions to persons actingin a particular
capacity, or to the incumbent for the time being of a particular office,is
ex hy9othesi resorted to only in order to make provision for the possibIe
future loss of capacity or office by the individual holder thereof. Thus,
on the one hand, this device serves the positive purpose of ensuring that
there bill always be a suitable person to perform the functions in question.
Onthe other hand it ensures negatively that a particular incumbent ofan
o%ce is prevented from continuing to exercise the functions in question
after loss of his office.Both these aspects serve to stress that a grant ofa
function in this form is derived from a contemplation that the present
incumbent of the office will or may not rernain alive (or in existence) as
well as suitable and able to carry out the function for a sufiïcient length
oftime to bring it to its completion.
Because of this essential purpose of this legal device, it finds its main
application in connection with natural persons, who are subject to death,
disease, insanity, resignation, dismissal, promotion or demotion, and may
thus become incapable of performing a particular function.
The position of associations (lvhether incorporated or not) is, however,
substantially diHerent .They are capable of perpetual existence, and are
not subject to the ordinary human vicissitudes referred to above. Conse-
quently the normal contemplation is that an association wili continue
in existence and remain available and capable to carry out a function
until its completion. Furthermore, an association usualiy does oot act
in a nurnber of different capacities (asdistinct from engaging in avariety
of activities). It would, consequently, only in exceptional cases be con-
sidered appropriate, or necessary, or desirable, to appoint an association
TheLaw ofTreatics (igbr), p. 745. WrighQ.,ilfandates undcr theLeagoofNations
(191Vide paras.37-42,inira.34 SOUTH WEST AFRICA
to perform a function in its capacity as the hoMer of a particular office
or qualification. Such a situation would arise only where there exists a
specific contemplation that the association might cease to hold a stipu-
lated office or qualification, in one or the other of the following ways:
firstly,in that the association might, while remaining in existence, lose
the office or qualification, and thereby become either incapable, in
fact or in law, or unfit in the contemplation of the stipulator, to perform
the function concerned, or secondly, in that it might be dissolved and
thereby cease to exist at all.
15. It is consequently implicit in Applicants' "organized international
community" theory that the authors of the mandate system must have
contemplated the possibility that the League might at some future date,
for one of the two possible reasons referred to above, cease to represent
or constitute the "organized international community" and consequently
to be able or fit to perform the supervisory functions entrusted to it in
the mandate system.
Applicants do not appear to suggest that the authors had in mind the
possibility that the League might lose its quality of constituting or repre-
senting the "organized international community" despite remaining in
existence l.
By a process of elimination it therefore follows that Applicants'
"organized international community" theory amounts rnerely to an
averment that the authors of the Mandate, by a particular method,
intended to guard against the consequences of a possible future dissolution
of the League, viz.,by making provision for a succession of supervisory
organs in such event. And, as demonstrated above, Applicants seek to
base this particular succession-argument on an implication to be foundin
the mandate documents 2.
16. By reason of the conclusions reached in the preceding paragraph,
the ar~uments adduced bv Remondent in its Counter-hlemorial in order
to denïonstrate in principie the *untenability of any suggested implication
in the mandate documents of a ~rovision regard in^!future succession of
superviçory organs, are fuily applicable to- the firticular implication
alleged by Applicants in their "organized international comrnunity"
theory. These argumentsmay be briefly summarized as follows:
(a) Since in fact nobody in 1920 contemplated the possibility of the
future dissolution of the League, it would be unrealistic to impute
an intention to the authors of the Mandate to guard against the
possibleconsequences of such dissolution 3.
(b) Even if it be assurned that the future dissolution of the League
l It nevertheless remains a necessary corollary of Applicants' argument that the
Mandatories would have been entitled to refuse to submit to supervision by the
League if it ceased to constitute represent the "organized internationacommu-
nity" even ifitremained in existence.Inthis regard it may possibly be questioned
whether the League could be said to have been fully representativeof the inter-
national community during its lasfew years ofexistence, even prior to the foun-
dation of the United Nations, when a number ofStates, including major powers
suchas the United States of America, the U.S.S.R., Germany, Japan and ltaly,
were not members of the League. And who constituted orrepresentedthe "orga-
nized internationalcommunity" during the simultaneous existence of the League
and the United Nations?
Vide para. 13,supra.
II, p.123. REJOINDER OF SOUTH AFRICA 35
was contemplated, it must be borne in mind that certain of the
Mandatories were reluctant to accept the extension of the mandate
system to particular territories occupied by them, being influenced
in their acceptance, inter dia, by the nature of the supervisory
machinery, which was carefully checked and balanced so as to
render unlikely any injurious, biased or unfair interference with
mandatory government, and so as to contain the rnininium of
political element and a maximum of independent, expert approach.
It 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, procedure and attitude
of which were ex hypothesi unknown to them, and in circumstances
whicli were unpredictable l.
(c) The provisions regarding amendment in Article 7 of tlic Alandate
(and similar provisions in other mandates) enab1cd the mandates
to be amended to meet changes in circumstances, and indicate an
attitude on the part of the authors of the mandates that such
changes shoulrl be dealt with as and when they arose. 1s it then
likely tiiat they would have attempted to make provision inadvance
for something as uncertain in its nature and consecluences as the
dissolution of the League =?
(d) Na State allegcd the existence of such an implied agreement,
despite discuçsions concerning the future of the mandates by the
founders of the United Xations (including many founders of the
League) in 1945-1946,by the members of the League at its final
session inApril 1946, and by Alembers of the United Nations in the
years 1946-1949 3.,
The argument that rights or interests in respect of mandates
passed to the United Nations as represcnting "the civilized and
organized collectivity" or the "international community" or
similar phrases, indeed first came to be used, by representatives
of a few States, as froin the end of 1948 only, i.e., aiter years of
debate regarding mandates 4. These representatives did not,
however, base this argument on the facts, circurnstances and
intentions esisting in 1920, or on any contention of implied con-
sent~ hy the authors of the mandate system. They treaterl it rather
as based on a principle of law, operating independently of the
intentions of the authors of the Mandate, and in some cases they
joined it with arguments based on Article 80 (1) of the Charter 5.
That these States were relying on their construction of principles
of law, and not on alleged facts within their knowledge, appears
also from the fact that in the case of some of thcm this argument
Errasinconsistent with the attitudes adopted by them at an earlier
stage 6.
l II,pp. i19-120 and 123-1z+
Ibid. pp.123-124 (para. 16).
Ibid. (para17).
+ Ibid.. p. 70.
Ibid.. and speeches of representatives referred to there. Applalsotat one
stage placed heavy reliance on Article (1)of the Charterofthe United hTations
(videII.p. KI1,para.24). butapparently no longer do *th& Reply makes no
reference to this Article.
Ibid.p,.70 (para.60).36 SOUTH LEST AFRlCA
17. Despite the fact that Applicants' "organized international com-
munity" theory, being based on the aHeged intentions of the authors of
the mandate syçtem, is covered by the arguments advanced in the
Counter-Mernorial and summarized in the preceding paragraph, AppIi-
cants have not attempted to controvert the facts presented or inferences
drawn by Respondent. Instead they apparently seek to avoid the argu-
ments,factsand inferencesconcerned, andto develop a line of argument,
spread over two chapters l,which makes no reference thereto. The con-
tentions advanced by them appear to differ to some extent as between
the two parts, and will consequently be dealt with separately.
II. CHAPTEIR II OF THE REPLY
18.The rnanner in which Applicants present their "organized inter-
national community" theory in Chapter III of the Reply, is instructive.
Znpurported answer to a contention not advanced by Respondent, they
introduce this theory as follows:
. "Applicants submit ,.. that the 'sacred trust' and 'tutelage'
principle, in itself, must be regarded as a statement of legal obli-
gation, embodying juridical content. The enforcernent of the 'sacred
trust', moreover, became a responsibility 'laid upon the League as
an organized international community' =." (Footnoteomitted.)
The rest of their section A of Chapter III is devoted largely to devel-
oping the submissions:
(a) that the provisions regarding the "sacred trust" and "tutelage"
principles gave rise to legal obligations; and
(b) that enforcement of the "sacred tmt" was the legal responçibility
of the "organized international cornmunity" as an entitp or concept
distinct from the League of Nations.
19.It rnust be noted that proposition (b) referred to in the previous
paragraph is not a necessary corollary ofproposition (a). Thus, although
it is admitted that the authors of the mandate system intended the
"sacred trust" to give rise tolegal obligations 3,that does not answer
the real question at issue for present purposeç, viz., in what manner did
such authors seek to ensure compliance with the "sacred trust-a
question which, as noted above 4,can be resolved only by an examination
of their intentions.
20. As indicated above, Applicants do not indeed contend that there
is any basis other than the intention of the authors of the mandate
system for their construction of the element of accountability to the
administrative supe~sory organs of the League '.Rather, by combining
their treatment of their submisçions (a) and (b) referred to above (there
being ample authonty and sound argument in support of the uncontested
"issue" (a), but not of (b)), theyattempt to showthat both aspects were
in accordance with the intention of the parties. When, however, the
IV,Rcply, Chaps. III and VI.
IV, p. 233. Vide Chap. II, pararr-rq,sspra,
Videpara. 12,sugra.. 11-14,upra.
Vadapara. 18.supra. REJOINDER OF SOUTH AFRICA 37
authorities and arguments relied upon specifically to estabiish Applicants'
submission (6) are examined by themseives, it is revealed how farthey
fa11short of the purpose for which they are adduced-as will, it is sub-
mitted,appear from the succeeding paragraphs.
21. Applicants' authority in support of their allegations regarding the
legalresponsjbility of the "organized international community" consists
ofthe following:
(a) A statement in the Judgrnent ofthis Court in 1962 that the Mandate
Systern invohed ". .. the recognition of 'a sacred trust of civili-
sation' laid upon (sic) the League as an organized international
community and upon its Member States" l.
(6) A statement by President Wilson in 1919w ,ho said with reference
to his proposals for the mandate system (which proposals were not
accepted without major modifications) that "{tlhe fundamental
idea would be that the world was actingas hustee through a maida-
tory. . .*.(Foatnote omitted.)
(c) A statement by P. H. Kerr in 1916 that in colonial pohcy generally
"... the ruling people ought to govern the dependency as trustees
for al1mankind" 2.(Footnote ornitted.)
(dl A statement in the "Cobb-Lippman-House Mernorandum" of 1918,
with reference again to colonial policy in general". ..that a colonial
power acts not as owner of its colonies, but as tmstee fothe natives
and fortheinterestsofthesocietvofnations ..." 3.(Italics added.)
(e) A statement in 1945 by the League Secretanat that the mandate
system was ". ..calculated to safeguard the interests both of the
natives and of those countries which had asserted special claims, and
in addition, the interestO/ th iinternadionacEommunityin general" 4.
(Footnoteomitted.)
22. Deaiing first with the quotation from the 1962 Judgment, on which
Applicants rely so heavily S, Kespondent submits that the construction
contended for by Applicants is entirely erroneous. The concept which the
Court expressed in the passage under consideration, was that the "sacred
trust of civilization" had been laid upon two different entities, namely
"upontheLeague as an organized international community ad upon ils
MemberStates". (Italics added.)The words "as an organized international
community" serve in the context to describe the feature distinguishing
the League from its Members, and consequently mean, it issubmitted, no
more than "as an international organization". The use of the indefinite
article "an" is significant in this regard. There can hardly be more than
one "organized international community" in the sense contended for by
Applicants, or, indeed, in the sense of a concept like "the society of
nations" or like phrases on which Applicants also rely 6.
23. The highest possible effect ofthe other four statements relied upon
by Applicants 6,would appear to be that the mandate system was shaped,
Soüth West Africa. PveLivninaryObjections,JudgmLC.J:Refiovts r962p. 319
atp. 329.IV,p. 233.
IV,P.235.
Ibid., p. 236.
Ibid., p. 237.
Vide IV, pp. 233524and539.
Vide para.21,supra. 38 SOUTH WEST AFRICA
inter alia by the view that "the world" or "al1 mankind" or "the society
of nations" or "the internationalcommunity in general" Ras interestedin,
or would benefit by, the proper administration of dependent territories
generally, and of the former German and Turkish colonies and territories
in particular. This may indeed be conceded. That conclusion does not,
however, answer the real question, namely: In what manner did the
authors of the mandate systern seek to give effect to this interest of
"the international community in general"? Applicants' authorities faiI to
provide any answer thereto. In particular they do not suggest that there
was any intention or attempt to bestow legal personality, or legal rights,
interests or obligations upon "the world", "al1 mankind", "the society
of nations" or "the international community in general".
24. An examination of the arguments used by Applicants in support
of their "oraanized international communitv" contention shows them to
be as incon~lusive as the authorities relied Lpon. Thus Applicants point
to the obiective of self-determination for the peo~les of mandated terri-
tories l; (O the "necessity" for "internatjonafacc~untabilit~" 2; and to
the fact that the Mandate constituted a "new international institution,
the primary, overriding purpose of which is to promote the 'well-being
and development' of the people of the territory under Mandate" *.These
considerations do not, however, answer the vital questions, namely what
did the authors of the Mandate intend the content of the new institution
to be; hou did they seek to promote the weIl-being of the inhabitants;
wkat tyfie of international supervision did they intend to create? No
argument, as distinct from mere assertion, is directed towards showing
that these questions are to be answered in the manner contended forby
Applicants 3.
Applicants also point at certain alleged "fatal inconsistencies" in
Respondent's "central contentions" 4.The first two contentions referred
to by Applicants are indeed inconsistent and were for that reason ad-
vanced by Respondent in the alternative5. The thirdcontention reliedupon
by Applicants appears to be merely their paraphrase of the first conten-
tion 6.In this regard it is to be particularly noted that the description in
the said contention of the powers claimed by Respondent as being
.
"powers eqgiivalent to annexation .. . or sovereignty" represents
Applicants' characterization, and does not correctly reflect any sub-
mission made by Respondent B.
25. For the reasons aforestated, it is submitted that Applicants have
failed to establish in their Chapter III that any legal responsibility or
interest in respect ofrnandateswasgranted to the "organized international
comrnunity", or any other internationalentity or body Save the League
of Nations. In the next succeeding paragraphs, Respondent will consider
' IV, pp.239-242.
" Ibid., p.240.
' Vide alsopara. 35, infra.
' 11,p. 257.
has lapsed-in iwhich eventtvideChap. IV A, paras.o20-30,infra.is that the Mandate
IV, p.241.
Vide Chap. II, paras4-10,supra. REJOINDER OF SOUTH AFRlCA 39
the arguments advanced and authonties quoted in Chapter VI of the
Reply, apparently in support of the same argument.
III. CHAPTE \II OF THE REPLY
The GeneralTenor of Chaflter Ir1
26. In dealing with Applicants' arguments in Chapter VI of the Reply
regarding the lapse or othenvise of the provisions of Article 6 of the
Mandate, Kesponclent is at the outset facecl with certain difficulties of
approach. Applicants commence their treatrnent of thistopic by asserting
that in Chapter III'of the Reply they provided a-
". ..demonstration that the 'sacred trust'and the legal nature of the
'tutelage' principles of Article 22 of the Covenant imported obli-
gations of a legal nature, com~liancewPth whichis aw interestoj the
organized international cornmunity l". (ItaIics added.)
And one of the submissions made by Applicants in their Chapter III was
that "[tlhe League was to serve as the then existent political organ of the
international community . . ." 2.
It almost appears, therefore, as ifCliapter VI of the Reply is not in-
tended .to establish the "organized inter~iational cornmunity" theory,
but that it proceeds on the assumption that correctness of such theory
has already been demonstrated in Chapter III.Some support for this
reading emerges from the fact that Chapter VI apparently purports to
provide the answers to contentions supposedly advanced by Respondent,
rather than to present a new and independent line of argument. Thus
immediately after the sentence quoted above dealing wiih the "dernon-
stration" in Chapter III, Applicants refer to "Kespondent's contention
that its obligationswere mereIy contractual with the League of Nations"',
as if the rest of the treatrnent would provide a reply to this alleged con-
tention. Since, as has already been shown, this contention was not ad;
vanced by Respondent 3,itwould not be necessary to rebut Applicants
arguments if they are merely designed to demonstrate its incorrectness.
27. Also in other parts of their treatrnent of this subject in ChapteVI,
Applicants give the impression of purportedly contesting fictitious or
immaterial issues arising from the Counter-Memorial (or Applicants'
rendering thereof) rather than of providing a new and independent line
of argument in support of their "organized international cornmunity"
theory. Thus they contest Respondent's statement that-
"[tlhe conception, also, af the 'tutelage' of a backward people or
community by an 'advanced nation' could at most have been
intended in a broad, metaphorical sense 4".
Applicants do not, however, contend that the expression waç used
literally-on the contrary, they subrnit-
". .. that this new international institution [the Mandate System]
adapted to its own purposes and needs alralogousconcePtsof muni-
cipal çystems s". (Italics added.)
IV, p. 524.
3 Vade.para.II, supra.
+ II,p. 103.Vide IV, pp.527 and 531.
IV, pp. 528 and532.40 SOUTH WEST AFRICA
This alleged issue can therefore be described as "metaphor" versus
"analogy".
If the purpose of this aspect of Applicants' argument merely is to
establish that the correct word is "analogy" rather than "metaphor",
Respondent would gladly concede itto them. However, they go further,
and apparently with reference to the same passage from the Counter-
Memorial, say :
"Conlrarytu Resfondent's contention, tutelage was a universally
accepted concept, designed for the protection ofpersons 'not yet able
to stand by themselves' l." (Italics added and footnotes omitted.)
The italicized words, of course, do not give a correct reflection of the
paFage referred to. Inasmuch as Applicants' object is to establish the
valldity of the proposition that tutelage was a universally accepted
concept, under the mistaken impression (as appears from the italicized
words) that such proposition was contested by Respondent, it willonly be
necessary to Saythat Respondent does not quarrel therewith at all.
28. Applicants likewise refer to the "fallacy in Respondent's conten-
tion .. .that the mandatum concept 'could hardly have been known to the
Peace Conference as a whole' " 2.This is again a distortion of what
Respondent said. In fact Respondent's statement ulas:
"The more detailed and technical aspects ofthe private law insti-
tution [of rnandatum] could hardly have been known to the Peace
Conference as a whole-as distinct possibly from certain of its
members . ..3" (Italics added.)
Surely there can be no serious dispute aboutthis, or about the corollary
that the broad nature of the concept was in al1 probability generally
known. Consequently, this "issue" too cornes to nothing. And, indeed,
Applicants' discussion of the marzdatztm institution in reply to their above
rendering of Kespondent's argument, merelp leads them to the conclusion
that the principle of such institution-
". .. was used to indicate that a colonial power was not entitled ta
administer a colonial possession as beneficial owner. Rather, it would
receive a commission, or 'mandate', to administer the territory
solelyfor the benefit of the inhabitants. Hence, theterm 'mandatory'
had come to be synonymous with 'non-annexation' '".
Whether thc principles referred to in this quotation (which principles
were admittedly jncorporated in the mandate institution) derived from
the analogy of the institutionofnzandatum or from that of other fiduciary
institutions, seems tuRespondent tu be of no consequence 5.AccordingIy
no space will be devoted to controverting Applicants' treatment of this
topic, or their conclusion, which, however, as far as its final sentence is
concemed, appears prima facie to do violence at least to the laws of
semantics.
29. However, despite the apparent premise on which Chapter VI is
based, viz., that the legal interest and responsibility of the "organized
'IV, p.531.
Ibid.. p527.
"1, p. 104.
+IV, P. 533.
Vide para. 34, infra. REJOINDER OF SOUTH AFRICA 4I
international community" have already been demonstrated in an earlier
chapter ',and despite the indications that it is directed solely or primanly
at attempting to controvert contentions supposedly advanced by Re-
spondent,it is neverthelesspossible that Applicants do attempt in Chapter
VI to state and develop a positive line of argument in support of their
"organized international community" theory.
Such argument, itwill be recalled, must, in order to be of any relevance
to the issues before the Court, be directed at showing that the authors of
the Mandate intended the supervisory organs in respect of mandates to
consist, not of the organs ofthe League as such, but of the Leape organs
in their capacities as constituting or reprcsenting the "organized inter-
national community" 2. In the succeeding paragraphs, Respondent will
attempt to identify any such possible line of argument and to demonstrate
its untenability.
Sumnaaryof AP$licants'Apparent Contention
30. Applicants seem to contend the following:
('a) The essential feature of the municipal law concepts of trust and
tutelage (as wel1 as of other fiduciary relationships) is a splitting
between control and benefit 3.
(b) "From this basic division between control and benefit flow two
consequences: there must be an accounting concerning the exercise
of the control; there must be supervision by a public authority *."
(c) The obligation of a trustee or tutor to account to public authonty
is "not an obligation resting on contract", but is "founded upon
public interest and public policy". The community has an interest
in, and responsibility for, the proper execution of such fiduciary
relationships5.
(d) For purposes of the mandate system, the institutions of trust and
guardianship were adapted to the needs of the international society,
and reporting by the Mandatory and supervision by the League
were incorporated in paragraphs 7 and g respectively of ArticIe 22
of the Covenant as "necessarp corollaries of the fiduciary character
of the mandates" 6.
(e) In Article 22 (1) of the Covenant, ",the organized international
community" had undertaken a responsibility for, and manifested
an interest in, the promotion of the well-being and social progress
of the inhabitants of territories under mandate '.
(fj By analogy with the concepts of trust and tutelage in milnicipal
law, "the duty of international accountability" in the case of
mandates was imposed in order to protect the public interest and
responsibility of the organized international comrnunity to which
reference is made in sub-para. (e), supra
l Videpara. 26,supra.
2 Yide para.12.supra.
IV.PP. 527-530.
+ Ibid., p. 530.
Ibid., pp. 534-535nd538
Ibid., pp. 531-5and538.
Ibid.pp. 534and 538-539.
Ibid.p.538. SOUTH WEST APKICA
42
(g) Consequently, in performing its supervisorp functions with respect
to Mandates, the League of Nations \vas acting as, or representing,
the "organized international community" l.
(h) The United Nations has replaced the League of Kations as such
"organized international community" and liespondent's obligation
of international accountability is accordingly owed to the United
Nations in that capacity 2.
Since the above argument turns on the analogy between fiduciary
institutions in municipal law and the international mandate, it would be
convenient to deal with it in two stages, viz.,
(a) what in municipal law are the nature and sources of public super-
vision in regard to fiduciary institutions; and
(b) to what extent, and with what adaptations, was any such super-
vision taken over intothe mandate system.
Fiduciary Institutions inMunicipal Law
31. Applicants state, it is submitted correctly, that a fundamental rule
of the trust institution is that the trustee is put in a position where he
controls the trust, yet must use it not for his own benefit, but for that of
another 3.liespondent also agrees with Applicants' contention that this
division bctween control and benefit iç found in a large number of other
institutions in municipal Iaw 4.Thus Quincy Wright quotes an authority
as saying :
"The no-profit-in-trust-administration rule has been applicd to
agents, executors, administrators, attorneys, directors of corpor-
ations, guardians, and others tvho are not strict tnistees but whose
functions are like those of the trustee in that they act for others
and are entrusted with power over, and title to or possession of,
things to be used for the advantage of another. These quasi-trustees
have well recognized distinct names and classifications in the law.
There are also many transactions, situations and rlealings which
cannot be tagged or pIaced in a particular cornpartment of the law,
but which nevertheless show a status of reliance on the integnty and
ski11of another. The one tmsted haç received communications and
information, rendered services and given advice in a way analogous
to the transactions which ocçur in trusts and agencies. The one
trusted in a loose way acts forthe other and has the power to affect
the latter's financial interests. Equity applies this no-profit rule to
al1these fiduciaries from the strict trustee down tu the most remote
quasi-trustee in order tu encourage fidelity and loyaIty
When regard is had to the \vide claçç of fiduciary relationships referred
to above, al1 of xvhich involve a division between control and benefit 6,
Ibid., p539.535 and 539
Ibid., p. 5-28;para. 30 (a). supra.
Ibid., pp.528-530.
Bogert, G.,"ConfidentiaiRelationsand Unenforceable Express Trusts", Cornedl
Law Quarterly. XII1(Feb. 19-28).p.248 asquoted by Wright, Q., ~lfandatesatnder
the Leagueof vati ion(1930)p~. 388.
And many others may be added. such as certain types of servants and em-
ployees. members ofclubcornmitteers te,gofiorumgestores,etc. REJOINDER OF SOUTH AFRICA 43
it immediately becomes obvious that Applicants are tvrang in saying that
one of the consequences of such division is that "there must be supervision
by a public authonty" l,or that reporting to, and supervision by, such
authority are "necessary corollaries of the fiduciary character" of such
relationships 2.Such supervision is not as a matter of logic inherent in
the division between control and benefit, and, indeed, there must be few,
if any, municipal systems which provide for public supervision in respect
of ail such relationships, or even mosl of thern.
The true position is that the only obligation with respect to account-
abiiity which is normally regarded as incidental in principle to a fiduciary
reIationsl-iip, is the duty to render account fothe benejiciaries.This duty
can of course be enforced by or on belialf of the beneficjaries by recourse
to the Court or some other public organ. In the absence of such recourse,
however, no Court or other organ normally 3 plays any role with respect
to this duty to account.
32. In addition to the duty to account to the benefisinry,some form of
accounting to andlor supervision by a$ublic azttlzorityhas been introduced
in many systems, in respect of the performance of fiduciary obligations
falling in spccifiedcategories. Such introduction, which commonly occurs
by way of legislation, has in no case of whkh Respondent is aware,
resulted in a uniform duty falling upon al1 fiducianes to account to, or
submit to the supervision of, some public authority. Much the reverse
is the position-in al1probability the majority of fiduciarj~institutions in
the civilized world are not subject to such supervision at all, and where it
does exist, it does so by virtue of a special provision made ad hoc with
respect to a particular category of fidiiciary institution. Thus one ftnds
that very large classes of relationships, e.g.,those between principals and
agents, or masters and servants, are not generally subject to public
supervisioii ritall, although particular types of agents or servantsmay be
so subject in certain systems (such as, cg., certain types of brokers). And
even in the fiduciary relationship +ar excellence, namely the Anglo-
American trust, public supervision appears to be the esception rather
than the rule. Thus in England, the home of the trust, there does not
appear to beany provision at al1for regular accounting to, or supenrision
by, a public organ '.And in the United States of America, according to
an authority quoted by Applicants, a duty to account in court before they
are discharged, is imposed on trustees or "at least, trustees acting under
a will", "in many states", but not all. Other forms of accounting in court
are found only "in some states" 5.
33. Applicants proceed with a contention that tlie obligation to
account to public authoritp is "not an obligation resting on contract",
but is "founded upon public interest and public policy" 6.
This statement betrays a cardinal error of logic. "Contract" cannot be
compared or contrasted with "public interest and public po1icy"-the
' IV,p. 530.
Ibid.,p. 538;para. 30 (b), supra.
I.e., in thabsence of special provision, asdealwith inpara.32,infra.
' Vide Earl of H~lsbury,The Laws O/England, 3rded. (1962)V .ol33. pp. 976-977.
White, C. M. and Wells, M. M., Ultdevhill'Law Relatimg to Trusts and Trustees,
10th ed. (ig50) ,p. 384-387.
' IV, p.530.
Vide para. 30 (c),supra.44 SOUTH WEST AFRICA
two concepts are not comparable, the former being an actual source of
legal rights and obligations, whereas the latter is not. "Public interest"
or "public policy" cannot by itself create legal rights and obligations-
for that purpose some form of legislation is required l.Consequently the
true contrast is between contractual obligations, which (in municipal
law) are created by the acts of individuals in accordance with what they
conceive their private interests to be, and, on the other hand, obliga-
tions arising frorn legislation, which normally gives effect to the legisla-
ture's conception of what is dernanded by public interest and public
plicy.
Respondent is prepared to accept that, where irnposed, supervision by
public authorities in respect of hduciary institutions lalls within the latter
category. That by itself does not, however, appear to be of any assistance
In the present context. However rnuch public interest may have been
considered in imposing a particular provision, the content or effect of
such provision can be determined only by ascertaining the intentions of
4ts author, as clerived from the provision itself and other permissible
material. This basic ptinciple applies also tu the mrttter under consider-
ation. Whether an enactment which imposes a duty to account to a
public organ, also provides a substitute for such organ in the event of its
fallingaway,must necessarily turn on the interpretation of theenactment,
Le., the ascertainment of the intention of its author. If itappears that its
author did not intend to make provision for such a substitution, then
there would exist no supervisory organ after the lapse of the organ
initially provided for. In such case, "public policy" or "public interest"
or "community interest or responsibility" cannot step in tofilthe breach.
Only the legislature can remedy the omission if it considers it necessary
or desirable.
The highest effect tvhich "public policy", "public interest", etc., could
possibly have by thernselves, is to raise a general consideration of prob-
ability which could, depending on circumstances, serve as an aid in inter-
preting a particular measure. This consideration would be to the effect
that the legislature would probably not wish a provisionwhich serves the
public interest to become inoperative. Applied to the subject-matter of
supervision in respect of fiduciary relations, this consideration codd jn
an appropriate case be invoked in support of a construction resulting in
substitution rnther than Iapse of a çupervisory authority. However, two
points have to be borne in mind. The first is that a probability of this
nature can, even where the circumstances of a particular case afford it
exceptional weight, not be applied to the exclusion of other and more
primary aids to interpretation. Secondl~, the probability would clearIy
not arise where the measure to be interpreted was enacted at a stage when
the necessity for substitution was not amatter for practical consideration.
Since the necessity for substitution would hardly ever exist at the stage
of creation of the original supervisory authority, but is more likely to
arise at the stage ofimminent dissolution of such authority, itfollowçthat
the consideration of probability referred to above would-if applicable
Or, andthis possibilityisprobably theoreticalin regard to the subject under
consideration,some other recognized source of law,e.g.,general acceptance at
common law of the existence of a right or obligation, the object and offwhich
isto protect or advance public interest andpublic policy. REJOINDER OF SOUTH AFRICA 45
at all-normally play a role only when interpreting a measure enacted at
thelatter stage.
TheAnalogy betweentheInternationaE Mandatea~rdiWunici$d
Fiducia~y Institutions
34. Whether the duty of accountability was introduced into the inter-
national mandate by analogy to the municipal institutions of trust and
tutelage, as allegedby Applicants l,or on the broad analogy of the duty to
account in the private law mandatum 2,or of all three institutions,seems
to Respondent tu be of no importance, since Respondent agrees that
"[rleliance was explicitly placed upon accounting and supervision as
means of insuring an effective splitting between control and benefit" 3.
What is important, however, is that the duty to account to a supervisory
organ was, as in municipal law, introduced by special provision, viz., by
a law-making, multipartite convention which, though resting on agree-
ment between the parties to be bound thereby, was of a class bearing
much resernblance to legislation in municipal law and which has, indeed,
often been descriptively referred to as "international legislation" 4.
Respondent is also prepared to assume that, in providing for super-
.vision by the organs of the League, the authors of the mandate system
were influenced, inter alia,by the view that the proper execution of
mandatory responsibilities was a matter of interest to the international
community generally. But, as with regard to municipal law, it 1s lm-
portant to bear in mind the different natures of the concepts involved in
Applicants' submission. Accountability to organs of the League could
not have been imposed by the international community as such. Ex-
pressions such as "the responsibility and interest of the international
community" convey purely philosophical concepts. The "international
community" is not an entity capable of creating legal niles or bearing
rights and obligations 5.At most such responsibility or interest motivated
the law-making body or bodies (in this case the Paris Peace Conference
and the Council of the League) to make appropnate provision for super-
vision, and the legal effect of such provision derives from the fact of its
incorporation in conventional or quasi-legislative instruments (the
Covenant and the mandate instrument) and not from its character as
giving effect to such responsibilitv or interest.
&In order to determine the nature and content of the.duty of
accountability, it accordingly becomes necessary, as in municipal law,
to examine and interpret the relevant law-making instrument. The
content of the duty of accountability to be thus determined,must provide
the answer to the question whether provision was made for a substitution
of supervisory organs. This answer can consequently be obtained only
Vide para. 30 (d),supra.
II, pp.115 (para.2)and 117 (para.5).
IV,p. 53r Respondent, of course, in this regard stresses, as Applicants do not,
that accounting and supervision related to particular, specified organs.
Thus Hudson (Hudson. M. O., Imternational Legislution (rg31),Vol.1. p. xiii)
speaks of the term "international legislatioas being used to describe "both the
process and the product of the conscious effort to make additions to, or changes in.
the law ofnations". Videalso Lard McXair,The Law of Tveaties(I~GI) pp.729-739.
Applicants apparently contend to the contrary. Vide para.42, infra.46 SOUTH WEST AFRICA
by ascertaining the intentions of the authors of the mandate system as
expressed or implied in the niandate documents.
Respondent has given its reasons why an intention to make provision
for substitution cannot be read into such documents. On analysis, the
only proposition which Applicantshave adduced to counter Respondent's
reasons, is that "accountability" was regarded by the authors of the
mandate system as an essential element to protect the public interest in
the proper execution of the Mandate. Applicants do not, however,
attempt to correlate this propositioii with the circumstances relied upon
by Respondent (and which they have not disputed or controverted).They
do not show why the "essentiaiity" of "accountability" would have
induced the authors of the system, in the circumsta~ices then prevailing,
to make provision for the future succession of an undetermined body, in
unknown circumstances, to counter the effectsof a situation (the disso-
lution of the League) which they did not expect to arise and which could
be dealt with if and when it did arise. In other words, on tlie assumption
that "accountability" was indeed regarded as "essential", Applicants do
not dernonstrate that the authors of the mandate system agreed to do
anything about it, or why the consequence would therefore not be that, in
case of dissolution of the League, the Mandate would have to be amended
or ~vouldlapse. (On the assumption that "accountability" uras not con-
sidered essential, the whole basis of Applicants' contention naturally falls
away.) Al1this becomes the more evident from the fact that Applicants
donot show why, if there had been an intention to provide for succession
as regards supervisory organs, it was not expressed in the documents
themselves, or in any preparatory debate or negotiation, or why it was
not referred to in the later discussions on the subject.
Accordingly it is submitted that Applicants have failed to adduce any
arguments detracting from the validity of Respondent's submissions in
the present regard.
FurtlzerAutkoritiesQuotedbyAp+licnrzts
36. In addition to the authorities referred to by Applicants in Chapter
III of their Replv, and discussed above l,Applicants quote the following
authorities in support of their treatrnent in Chapter 1'1 of their "orga-
nized international community" theory:
(a) A statement by the Acting Secretary-General of the League as
follows:
"Co-operating in the fulfilment of their respective tasks, under
the searchlight of public opinion, the mandatory administrations
and the organs of the League of Nations have, in general, ensured
the application of the principles enunciated in favour of the natives
and of theconzmztnity of nations 2."
' Vide paras.21-23, SUPYQ.
The Mawdates Sysfeni-Ovigin-Principles-A p19li).at.i6n quoted by
Applicants in their Reply,IV, p. 535. (Itslics added by Applicants.) Applicants'
misspelling of "Co-operating", "fulfilrnentand "favour" corrected. It is tobe
noted that this is aquotation frorn thesame publicationcited in supportof the
"organized internationalcommunity" argument at IV, p. 237 of the Reply. Vide
para. 21 (e). swpya. RE JOlNDER OF SOUTH AERICA 47
(b) A statement by Paul Fauchille, as follows:
"Les régions sous mandat n'appartiennent pas au contraire au
mandataire, elles lui sont seulement confiéesen vue d'une gestion
confonne aux intérêtsdes habitants; en acceptant d'exercer le
mandat 'au nom de la Sociétédes Nations', le mandataire s'impose
des obligations, pour une mission de civilisation, vis-à-vd ies la
communauté interfzationale, comme le tuteur en contracte en accep-
tant la tutellel."
It is hardly necessary to statethat neither of these authorities provides
any support for Applicants' contention that the "organized international
community" was an entity bearing legal responsibilities, that the super-
visory organs of the League were appointed subject to the qualification
that they would hold the appointment only in a special capacity, viz., as
being or representing the "organized international commiinity", and that
provision was thereby made for substitution of supervisory organsto
whose jurisdiction Mandatories would be obliged to submit.
Conclusion
37. In the preceding paragraphs, Responderit lias demonstrated that
Applicants' "organized international community" theory amounts to a
contention that a particular type ofsuccession of supervisory organs was
provided for by implication in themandate documents 2.Respondent has,
it is submitted, shown conclusively that no provision of the type con-
tended for can reasonably, let alone necessarily, be read intothe relevant
documents.
In conclusion it must be noted that Applicants' contention that pro-
vision mas made for a succession of supervisory organs, is not a fortuitous
or incidental part of its argument, but represents an essential elernent
thereof. Nothing less would, in regard to the present issue, have sufficed
to constitute a cause of action, i.e., allegations which, upon due proof,
would entitle a party to judgment. Thus, for instance, it would not have
been sufficient for thcm to allege that the authors of the Mandateintended
to, and did, create an obligation of "international accountability" or one
to submit to "international supervision", and that the League organs
were specified merely as the means for giving eifect to such an obligation.
Such a proposition (which Respondent disputes) would, even if accepted,
not by itself have entitled Applicants to judgment in respect of the
present issue. In this regard a finding of this Court in an analogous set of
circumstances, which arose as aresult of the dissolution of the Permanent
Court, is apposite. A particular adjudication clause which arose for
consideration was construed by the Court as follows:
' IV, p.537. (Italics added by Applicants.) Thfollowing is a free translatofn
the quoted passage:
"The territorieunder mandate, by contrast, do not belong ta the mandato;y
they are only entrusted to it with view to an administration conforming to
the interestsof the inhabitants;in agreeing to excrcise the mandate 'in the
name of the League of Nations' the mandatorytnkes upon itself the obligations.
for a mission of civilization.towards the international community, as the
guardian in contract by acceptance of the guardianship."
Vide paras. 13-15. supra.48 SOUTH WEST AFRICA
"It was not the primary purpose to specify one tribunal rather
than another, but to create an obligation ofcornpulsory adjudication.
Such an obligation naturalfy entailed that a forum wodd be indi-
cated; but this was consequential."
Thereupon the Court proceeded to state:
"If the obligation exists independently of the particular forum ...
then ifit subsequently happens that the forum goes out ofexistence,
and no provision is made by the parties, or othenvise, for remedying
the deficiency, it will follow that the clause containing the obligation
will for the tirne being become (and perhaps remain indefinitely)
inoperative, i.e.,without possibility of effectia vpplication. But if
the obligation remains substantively in existence, though not
functionally capable of being implemented, it can always be rendered
operative once more, if for instance the parties agree on another
tribunal, or il another is supplied by the automatic operation of
some other instrument by which both parties are bound '."
Applied to the present facts, this finding would entail that even if
Respondent sbould have been under an obligation in terms of the Mandate
to submit to "international supervision" (and not, as Respondent
contends, to supervision by defined organs of the League), that by itself
could not have brought about a substitution or replacement of super-
visory organs on the disso~ution of the League. Such an obligation would
at that stage have becorne "inoperative, i.e., without possibility of
effectiveapplication", and could have been rendered operative once more
only by the legal substitution of some other supervisory organ, which
would have required Respondent's consent-unless, of course, such a
substitution had ab illitio been provided for in the mandate documents.
Applicants have not even alleged that Respondent at or after the disso-
lution of the League consented to such a substitution; nor could they
have any prospect of establishing such consent, in the light of the con-
siderations set out in Respondent's treatrnent of the subject in the
Counter-Mernorial 2.
Hence Applicants make the attempt, by means of the "organized
international community" theory, to establish that a substitution was
ab iltilioprovided for in the mandate documents-an attempt which
must, in Respondent's submission, for the reasons herein given, also
fail.
In view of the essential nature of Applicants' contention that the
implied provision relied upon by them involved a succession of super-
visory organs. Respondent has in its argumentup to the present confined
itself to the principle of such a contention, leaving aside Applicants'
specific formulation thereof. In the succeeding paragraphs, Respondent
will, however, analyse the concept of the "organized international com-
munity" as descnbed by Applicants in the Reply, in order to dcmonstrate
that such description provides further reasons why Applicants' contention
should be rejected.
Barccluna Tracfion. Lighf and Power Company, Limiled, Prelirninary Objecfions,
Judgment. I.C.1.Reports 1964,p. 6 atpp. 38-39. Videa!so p. 96.
2 11.pp. 124-163 and videfurther paras45-51.infra. REJOlNDER OF SOUTH AFRICA 49
The Relationshifi betweeltthe "OrganizedInternational Comrnunity" and
theLeagtteofNations
38. Its relationship with the League of Nations is, in Applicants'
expositions, perhaps one of the most enigmatic features of the "organized
international community". At tirnes Applicants speak as if the two
concepts were one, as if the League of Nations was the "Organized
International Community", until the latter, by some process of meta-
morphosis, changed into the United Nations. Thus a section of the Reply
is headed "The League of Nations as the 'organi~edi.nternationalcom-
munity' " l (italics added), to be followed by "The United Nations asfhe
'organizedinternationalcommunity' " 2.(Italicsadded.) The same form of
words is used at other places 3.
Elsewhere again, Applicants refer to the League as "an organized
international cornmunity", suggesting, by the use of the indefinite article,
that there existed, or was room for the existence of, more than one
"organized international community". Thus they refer to-
"... Applicants' contention, already sustained by the Court, that the
Mandate was a 'new international institution', and that an essential
principle thereof was 'therecognition of "a sacred trust ofcivilization"
laid upon the League as an organizedinternational community '' .
(Italics inoriginal.)
The probIems of international metamorphosis are difficult enough
when there is only one "organized international community" at a time.
Once the possibility of a number of simultaneousIy existing "organized
international cornmunities" is conceded, the difficulties assume immense
proportions. Fortunately, however, as will be shown below 5, it is not
clear that on Applicants' version the "organized international communi-
ty" does indeed change its.shape frorn time to tirne.
The submission that the League of Nations and the United Nations
successively cmstituted the organized international community, is, as
far as Applicants' argument is concerned, an innovation in the Reply.
In their Observations on the PreIiminary Objections, Applicants con-
tended consistently that these organizations represented the "organized
international community" 6. The change possibly constitutes an atternpt
lIV,p. 525.
Ibid., p. 537.
Vide. e.g., IV, p533 and 537.
.+IV, p.524. Vide also pp. 233 and 539 For Respondent's submissions regard-
ing the true meaning of the italicized words, which appeared in 1962 Judgment,
vide para.22, supra.
Videpara. 39, infra.
representative of the organized international community does one look to, the
League of Nations or the United Nations, the organ in existence when the Mandate
was conferred orthe organ now inexistence?" (p. 446)and, "... the authors ofthe
Covenant endowed the members of the League of Nations, the Organ then represent-
ing the international community of civilized nations, with the right to institute
the judicial proceedings{p. 449). 5O SOUTH WEST AFRICA
on Applicants' part to associate themselves with the language used by the
Court in 1962 to connote something entirely different l.
39. ~h; better elaborated portions of the Replp suggest that the
"organized international comrnunity" did not assume the form of the
Leûgue of Nations, but that at al1 times it retained a separate identity.
On this theory, the relationship between the two entities or concepts still,
however, remains obscure. Thuç Applicants state thatthe Leagile served
as "the then existing body politic of the organized international corn-
munity" *, and as its "then existent political organo3; that the "organ-
ized international community", was "then repreçented by the League" ',
that the League "served ... the interest of the organized international
comrnunity, iiseeing to it that [the inhabitants of mandated ferritories]
were adequately protected" 5; and that the League acted "in its capncity
as the onlyexistinginstitution through which the organized international
community at that time could act" 6. (Italics added.) The tast three
quotations siiggest that the League acted in some instances as an agent
for the "organized international community", but could have acted in
other capacities aswell. The earlier two point to a closer degree of identifi-
cation, eithear s "body politic" (whatever the expression may mean in
the context) or as "political organ".
The Yowers and Fwzctions of the "Organized InternatioitnlCommunity"
40. In the absence of a systematic exposition in the Reply of the
alleged powers and functions of the "organized international community"
Respondent can only point to the specific aspects referred to in Appli-
cants' argument. It appears that, according to Applicants, there was, by
the time of the Paris Peace Conference,
". .. wide support for the principle that the organized international
community should be a legal party in interest to the disposition of
the colonial issue?",
Consequently, at the Conference (as iç apparently submitted), the
"organized international community" proceeded to draft the Covenant.
According to Applicants, Article 22 contained-
". .. obligations of a legal nature, in accordance with the expressed
objective of the organized international commrinity to afford legal
protection to the well-being and social progress of the inl-rabitants of
mandated territories, as a 'sacred trust of civilization'
But the "organized international community" did not only impose
these obligations of a legal nature on others, e.g., the Mandatories.
Applicants stibmit that this entity itself ".. . assumed responsihility of a
Vide para. 22,sirpra.
IV, p.534. "Body politic" is defined as "the nation in its corporate character;
the state" in Onions, C.T. (Ed.), The Shortcr Oxford English Dictionary. 3rd cd.
(1959)~P. 197.
IV, p.240.
' Ibid., p. 534.
Ibid.. p. 535.
Ibid., p535
' Ibid. p. 237.
Ibid.p,. 238. REJOISDER OF SOUTH AFRICA 5 1
legal nature with regard to the tutelage of certain peoples" l in accord-
ance with the principle-
". . . thntasa matter of international law, the well-being and social
progress of [indigenous peoplcs in certain areas of Africa and Asia]
wouid be the responsibility of the 'organized international commu-
nity,' insured by legal, rather thanby solely moral, considerations 2".
This responsibility was not shirked by the "organized international
cornmunity". Straightaway, we are told,
". . . mandatories ... werecommissioned to exercise, on behalf of the
organized international community, a tutelage of peoples not yet
able to stand by themselves 3".
Lest there be any doubt as to wlio was responsible for appointirig the
Mandatories, Applicants repeat :
"... the provisions for reporting to the League and supervision by
the League were intended . . . as a commission, or mandate, from
the organized international community . . . l".
And, as shown cibove4, the "organized international comniunity"
allegedty obtained the services of the League of Nations to perforni the
duty of supervising mandates.
This diity was transferred by it to the United Nations when the Leaguc
was diçsolved or when the United Nations becantethe "organized inter-
national community" =. Since then, the "organized international com-
munity" has apparently been espressing its vie~vsthrough the organs
of the United Nations 6.
TheContpositlon ofthe "OrganizedInlernationaECommunity"
41. What the composition of the "organized international community"
was (as gathered from the Reply), is closely bound up with the problem
concerning its relationship tvith the League of Nations 7.Thus if the
"organized international comrnunity" actually ?vas successively, the
League of Nations andthe United Nations, then the onIy difficulty about
ascertaining its composition u-ould be to determine wîth which organiza-
tion or association of States it was identified at any particular stage. So,
for instance, when drafting the Covenant B,the "organized international
community" presumably consisted of the signatories to the Treaty of
Versailles; and when itcomrnissioned the itlandatories it must have
partaken of the form of the Principal Allied and Associated Pobvers,
which appainted the hlandatories, and the Council of the League of
Nations, which "defined" the "degree of authority, control or adminis-
tration" to be exercised by the Mandatories 9.A probtem might also arise
l IV,p. 538
Ibid., p233.
Ibid.p. 534.
' Videpara. 39, suprtl.
IV.PP. 537-540.
06 Ibid.p. 540.
' Vide paras.38-39,supra.
Vide para.40,supra.
-4rt22 (8) ofthe Covenant of theLeague ofNations. Vide II, pp.15-22.52 SOUTH WEST AFRICA
as to its composition during the penod of simultaneous existence of the
League and the United Nations, but this is probably not of practical
importance.
On the other hand, if, as appears more likely, Applicants contend that
the "organized international community" merely acted through the
agency of these various organizations or groups, the problem becomes
more difficult, if not, indeed, insoluble.t any rate, Applicants do not
supply any guidance as to the shape, size or composition of this concept or
entity which, on their reconstruction of history and law, played (and still
plays) such a vital role in international affairs.
Conclusion
42. To sum up, Applicants' "organized international comrnunity", on
which their whole succession argument depends, is not defined or ex-
plained in the Reply, and an analysis of the references to it discloses a
complete confusion and lack of clarity as to its most essential attributes
-a further indication that the alleged intent which is in this manner
sought to be ascribed to the authors of the mandate system, is in tmth
mere afterthought on the part of the propounders of the argument. It is
unthinkable that the authors of the Covenant would have granted legal
rights or interests to suchan entity, or that the Mandatories would have
consented to be subject to supervision thereby.
In fact, Applicants' whole concept of the "organized international
community" is in confiict with the most basic principles of international
law. In order to argue that the "organized international commun-
ity" possessed legal rights and interests, and granted legally effective
commissions or mandates, Applicants would be constrained to contend
that it waç a legal$ersona. However, it is still an open question whether
even the League of Nations, a specific internationalbody with a con-
stitution and with defined carporate functions, ever possessed legal
personalityl. A lortiori the "organized international comrnunity",
an undefined and amorphous concept, could hardly, at any rate at the
time of creation of the mandate system, have been accepted as a legal
~#SO?ZP.
Finally, the picture of an "organized international community" acting
as something distinct from the Mandatories and imposing its will on them,
is an entirely unrealistic one. In fact, on any conception of the "organized
international community" (including that of the Applicants), theManda-
tories Eargelydictaled thepolicy purszked by it with respect to mandates.
Thu, whether as Allied Powers, or as Members of the Council of the
League, or as Mandatories, France, Japan, Belgium and Great Britain
and its Dominions played vital roles in the creation and operation of the
mandate system.
In this regard Duncan Hallsays,refernng to the debate in the "Council
of Ten" on 30 January 1919, during which, inter aJia,the BritishDumin-
ions stated their attitudes on the proposals regarding the futureofcertain
German colonies 2:
"It was the governments taking part in this debate that, by their
agreement, created the mandate system. It was they that drafted
Vide II, pp207-208.
Ibid., pp11-12. REJOINDER OF SOUTH AFRICA 53
the self-imposed limitations of the mandate charters. It was they
that put the system into operation, weakened though it was by the
absence of the United States l."
He continues by çtating thatit was these governments-
". ..that sustained it [ive.,the Mandate System] and made it effective
by their loyal cooperation with the central organs of the League
during the twenty-six years of the League's life '".
For the whole period of the League's existence, the learned author
points out, the relationship between the League and the Mandatory
Powers remained as descnbed by Mr. Balfour in the Eighteenth Session
ofthe Council,when he said :
". ..'mandates were not the creation of the League, and they could
not in substance be altered by the League'. He furtherpointtd out
that 'aMandate mas a self-imposedlimitation by theconquerwsonthe
sovereegnlywhich ikey exercisedover the conqtceredterritory. In the
general interests of mankind, the Allied and AssociafedPowers hd
imposedthis limitation upon themseh~es ,nd had asked the League to
assiçt them in çeeing that this general poIicy was carried out, but
the League was not the author of it.. .'l." (Italics added and
footnote omitted.)
C. The Events during the Yean 1945-1946
43. In regard to the events during the years 1945-1946,Applicants
çay :
"Consistently with tlaeforegoing[i.e., mith the 'organized inter-
national community' theory], and as was to be expected in the light
of [the ovemding purpose of the Mandate to prornote 'the well-being
and development' ofthe people of the Territory], the proceedings at
the period of the dissolution of the League of Nations and the orga-
nization of the United Nations, manifestedthe clearintentiw O/al1
coltcerned topreserve and asswe proper dischargeby the organized
internationalcommulzitywith respect toits resfionsibilitiestoward the
inhabitantsof mandated territorie=."(Italicç added.)
Applicants conçequently do not contend that the events of 1945-1946
created any new basis forthe succession of supervisory organs in respect
ofmandates. Sucha contention would indeed have been inconsistent with
their "organized international community" theory, which involves that
the Mandate camed within itself the method of substitution of super-
viçory organs, thus rendering any special provision in 1945-1946
unnecessary. Applicants therefore rely on the events during those years
asmerely manifesting an intention topresenTeand assure proper discharge
of the responsibilities of the "organized international community".
Consequently, if, as Respondent submits, Applicants' whole argument
based on.the asserted legal responsibility of the "organized international
community" is unsound, tlieir subrnissions regarding the effect of the
' Hall.H. D.. Mandates, Dependenciesand Trusteeship (rg48), p. 117.
IV,p. 539. 54 SOUTH WEST AFRICA
events during 1945-194 being based on the existence of such responsi-
bility, cannot assist them l.
44. Applicants do not present any argument in support of their inter-
pretation of the events of I 45-1946. Inçtead, they rely solely on the
Judgment of the Court in r98 2,and particularly tlie following passage:
". .. obviously an agreement was reached among al1the Members of
the League at the AssembIy session in April 1946 to continue the
different Mandate2 as fur asit wasPracticallyfeusibleorofierable with
reference to the obligations of the Mandatory Powers and therefore
to maintain therightsof theMembersof theLeague, notwithstanding
the dissolution of the League itself 2". (Italicsadded.)
-4s will be noted in the succeeding paragraphs, neither the 1962Judg-
ment as a ~vhole,nor the above-quoted passage, assists Applicants. On
the contrary, they militate against acceptance of Applicants' submissions.
45. In the first place, the purport of the agreement which the Court
considered to have been reached in April1946, was, in the Court's words,
to "continue the differentMandates ... with reference to the obligations
of the Mandatory Potvers"-the implication therefore being that, but for
such agreement, the Mandatories' obligations, or at least some of thern,
would have lapsed. Consequently, to rely on such an agreement as a basis
for keeping supervision alive, would be inconsistent with Applicants'
submission, which relies on the implication of a provision in the mandate
documents which would, by itself and without further agreement,have
ensured the continuation of supervision in respect of mandates.
46. Secondly, Respondent has shown, relying on the italicized portions
of the above-quoted passage aswell as on other extracts from the Judg-
ment, that the finding of an agreement in 1946 (which relates to the sur-
vivai of the compromissoryclause) is inconsistent with a vie~ that a
transfer of sufiemisory junctions was effected from the League to the
United Nations 3. Applicants refrain from dealing with Respondent's
submissions in this regard. Furthermore, they do not indicate how the
Court's holding of an "[algreement ... unzongal1 the Members of the
League at the Assembly session in April 1946" (italics added) can consti-
tute authority in support of their contention in so far as it is based on
". .. the proceedings at the period of ... the organization of the United
Nations .. ." 4.(Italics added.)
The finding in the Judgment of an agreement in 1946 was arrived at
by only five of the members of the Court, and from the various opinions
on the Preliminary Objections it seems evident that the finding was a
matter of sharp controversy between the members of the Court as a
l On the other hand, if Applicants' "organized internatiocomrnunity" theory
were to be correct, it does not seem tliat there would have been any function of
any kind in respect of Mandates leffor the League to perform at its final meeting
in April 1946.since the United Xations, which at that stage had more &lembers
than the League (vide II, p. 33 and Madol. H. R. (Ed,),The United valions
Association Yearbook 1947,p 291-292) wouId presumably have replaced the League
as "organized internationa1community" even before the latter'dissolution(vide
para. 15, footnote1,supra).
South West AfricaPreliminary Objections, Judgme~tT.CJ. Reports 1962. p319
at p.338 as quoted inIV, p. 539.
' 11.PP. 157-159-
IV, p.539. REJOINDER OF SOUTH AFRICA 55
whole. IVhatever the justification rnight be for finding that such an agree-
ment was arrived at regarding maintenance of "the rights of the &lem-
bers of the League" ', to which aspect the finding was carefully con-
fined, the facts pertaining tu the deliberatians of 1945-194 an6, to dis-
cussions during the first feu. years thereafter, make it quite clear that no
such or similar agreement could have been entered into relative to admi-
nistrative supervision in respect of mandates. This topic is fully dealt
with in the Counter-3Iemorial 2,and Applicants nowhere in the least
attempt to controvert or even to deal with the facts and argumentsthere
advanced j.
47. Applicants refer also to other passages from the Judgment 3.At
no stage do they, however, join issue with Respondent's careful analysis
of the Judgment as a whole ',which led it to the conclusion that-
". . . no clear inference can be drawn as to the Court's view on the
question whether the Lcague's supen~isory functions regarding
Nandates have been taken over by the United Nations-although
Respondent submits, ... that on balance the reasoning is inconsist-
ent with such successsion
48. Indeed, Applicants clo not even indicate how the passagcs quoted
by them from the Judgment can be said to support their contentions.
They merely state:
"No 'new facts', or other relevant evidence, are adcluced by Ke-
spondent to justify reopening or reconsidering of issues twice previ-
ouslypresented tothe Court and twice decided by it"". (Italics added.)
In fact, the issue relating to the lapse of the League's supervisory
functions has been decided by the Court only once, viz.,in the Advisory
Opinion of 1950 7.In tlie Preliminary Objections proceedings it was also
argued, but, as Kespondent has demonstrated 8, far from the 1962Judg-
ment standing inRespondent's way in its re-argument of the issue re-
garding Article 6 of the Mandate, it provides considerable support for
Respondent's contentions. In addition, Respondent hns(despite what is
said by Applicants) presented tiie Court with vital factual information
which was not placed before the Court for the purposes of its Advisory
Opinion in rg5o ?,and these facts (or at least some of them) have indeed
been regarded by some members of the Court as of great irnpartance for
the purposes of the issue under consideration '0.Applicants do not make
any attempt in their Rcply to present argument for tlie purpose of im-
pugning tliis factiial information or its importance. Instead, as indicated
in the next paragraph, they avoid dealing with it.
49. Applicants make the unmotivated statement that "[iln its J%idg-
' -4sto which, see Respondent's submissions in 11, pp. 2.+0-253-noreplied to
at a11by Applicants.
II, pp.124-163.
Vide also paras48 and 49, iiiira.
+ II, pp.156-161.
5 Ibid.,pp.160-161.
IV,p. 539,footnote 6.
a II, pp.152-163,and para. 6,supra.
II,pp. 146-148and earlierpÿssages therereferred to.
'O Ibid.p,. 156 (para. 58).56 SOUTH WEST AFRICA
mnt of SI December 1962, the Court referred to its Adivsory Opinion of
1950, and rejected Respondent's contentions in al1 respects" l.
For the reasons referred to above 2, this statement is incorrect, par-
ticularly as regards Respondent's submission concerning the lapse of
supervision by organs of the League.
Applicants, however, repeat this incorrect statement and make use of
it to avoid dealing with the additional factual information presented by
Respondent.
Thus they Say:
"Al1 such assertedly 'new facts' were placed before the Court in
the P~eliminary Objections and in Respondent's Oral Arguments
thereon. The Court nonetheless reaflïrmed its Advisovy Opinion
and, in the words of the Court:
'Al1 important facts were stated or referred to in the proceed-
ings before the Court in 1950.'
Accordingly, no purpose would be served by showing, as Applicants
submit, that Respondent's reiteration ofthe alleged 'new facts' add
(sic) nothing ne^'^." (Footnote omitted.)
50. Indeed, irrespective of whether this factual information wasknown
to the Court in 1950 or not '.Respondent submits respectfully that on al1
the information before this Court, it will hold that the 1950 Advisory
Opinion was incorrectly decided in respect of the issue under discussion
51. Finally, Applicants Say:
"As has been shown, and as is obvious /rom thehistory of the Man-
date since theincepiion of theUnited Nationst, hat Organization has
consistently maintaineci its right and duty to exercise supervisory
authority over the Mandate, and such a position has reflected the
virtually unanimous expression of the organized international corn-
munity 6." (Italics added and footnote omitted.)
The "as has been shown" refers back, by way of a footnote in the
Reply, to the "History of the Dispute since 1960" 7,and certainly not to
"the history of the Mandate since the inception ofthe United Nations".
In fact, Applicants have not sought to contest (except with the above
unsubstantiated statement) Respondent's demonstration of the position
taken by Members of the United Nations prior to the 1950 Advisory
Opinion, viz.:
(a) Up to the year 1947, no Rlember of the United Nations voiced any
contradiction to Respondent's contention that in law the United
Nations was not vested with supervisory powers in respect of the
Mandate for South IVest Africa, although 41 hlembers took part
l IV,p. 550.
Vide para.6~ su*wa.
' IV,p.-552.
' AS to which Respondent abides by its above submission.
" Applicants frequently refer towhat they cal1"the Iaw of the Case". (Vide. cg.,
IV, pp. 476,524. 538 and 552,) Thisis apparently sorne doctrine associated with
the res judàcata principte. Vide, however, Chap. II,2,asupra as to the attitude
adopted by Appticants on the question whether issues decided in the Advisory
Opinion are inlaw Tesjudicata.
IV$PP. 539-540-
' Ibid., pp222-230. REJOINDER OF SOUTH AFRICA 57
in debates on South West Africa in that year and New Zealand had
adopted a similar view in relation to Western Samoa.
(b) Over the years 1947 to 1949. at least24 States hfembers of the
United Nations (other than Respondent), in participating in de-
bates in the organs ofthe United Nations, or in expressing views
in its agencies, whether relative to the Mandate for South West
Africa or to other Mandates such as Palestine and the Japanese
Mandated Islands, either expressly or by clear implication acknow-
ledged that, in the absence ofa Tmteeship agreement, the United
Nations would have no supervisory powers over a mandated terri-
tory. These States were: Australia, Canada, China, Colombia, Costa
Rica, Cuba, Czechoslovakia, France, Greece, Guatemala, India,
Iran, Iraq, the NetherJands, New Zealand, Pakistan, Pem, the
Philippine Republic, the Soviet Union, Sweden, the United King-
dom, the United States of America, Uruguay, Yugoslavia.
(cl Up to 1949 only five States voiced any contradiction to the pro-
position aforestated. These States were Belgium, Brazil, Cuba,
India and Uruguay. In the case of the last-mentioned three States,
the attitude adopted by them in 1948 and 1949 was in conflict
with their earlier contentions, and in the case of India also with
its contentions before this Court in 1950. And in no case was the
contradictionbased on any implications in the mandate documents
or a suggested agreement or understanding (other than Article
80 (1)of the Charter) arriredat during the period 1945-1946.
(d) At no time up to 1949was any such contradiction voiced by eithcr
of the Applicant States, Liberia or Ethiopia'.
D. Conclusion
52. Inthe result, Respondent's argument on the lapse ofits Procedural
Obligations has in major respectsbeen Ieft unanswered, and itissubmit-
ted that the validity of that argument is not affected by anything con-
tained in the Reply.
1 II, pp. rqo-rqi. CHAPTER IV
THE LAPSE OF THE MANDATEAS A WHOLE
A. General
I. Before considering any arguments raised in the Reply relative tothe
question whether the hlandate as a whole has lapsed, it may be conve-
nient to recapitulate briefly liespondent's contention in this regard. It
will be recalled that Respondent's basic contention in the Counter-
Memorial, as in thiç Rejoinder, is that the provisions regarding super-
vision of mandates by organs of the League of Nations lapsed on the
dissolution of the League. This contention is based on the provisions of
the instruments concerned, read in the light of al1relevant circumstances,
as well as on an esamination of al1 material facts and legal principles
which have been or could be suggested as bearing upon the possibility
of succession to the League's supervisorqr functions by organs of the
United Nations '. Respondent's contention regarding supervision is
therefore not depeiident on, nor is it qualified by, any contention or ar-
gument raised by Respondent in regard to other issues, but fails to be
considered by itself and on its own merits. In particular, as has been
noted 2,it is not hased on nny "premise that 'the Mandate as a whole
has lapsed' ", as alleged by Applicants.
2. The lapse of the provisions regarding supervision hy the Lcague,
hobvever,raises the further question whether the Mandate was capable.of
continued esistence toany extent whatever once such provisions bccame
impossible of performance 3. In the Counter-Memonal 4, Respondent
commenced its treatment of this question by accepting, with reference
to views expressed at the Preliminary Objections stage by certain mem-
bers of this Court, that there was nothing notionaIIy impossible in the
idea of severability or separability of treaties or institutions. The correct-
ness of this attitude has been confirmed by later proiiouncements of
other members of this Court. Thus Judge hlorelli said in the Barcelona
Traction case :
"If a treaty creates obligations for the contracting States and at
the same time provides for the intervention of a certain organ in
cannection with the performance of those obligations, the obliga-
tions may well continue to exist despite the disappearance of the
organ which is not necessarily hound to entai1 more than the extinc-
tion of the powers of the organ and of the subjection of the States
to it
' Vide IV. Counter-Mernorial, Book II, ChapIV and also Chap. III.supra.
Vide Chap. III,para.2, supra.
II,p. 164.
Ibid., p. 165.
Barcelona Traction, Lighl and Power Company Liniited, Preliminary Objectio?is.
Jvdgmcnf, I.C.J. Reports 1964. p. G at96. REJOINDER OF SOUTH AFRICA 59
And in the same case, Judge Armand-Ugon stated:
"The separation of international obIigations as between clauses
tiiat are valid and clauses that are not valid isadmitted in the case-
law of the Permanent Court."
After referring to examples, he proceeded:
"The idea of the integral character of a convention has its origin
ina notion taken from private law. In the Opinion of the Court on
Keservations, this notion of the absolute integrity of conventions
was rejected as not having been transformed into a rule of inter-
natioiial law . . An article which has lapsed may quite properly be
separated from other provisions of the treaty which continue to be
in force where such provisions can apply quite apart from the pro-
vision that has lapsed '."
3. In view of the possibility in law of a partial lapse of treaties or in-
stitutions,there is no simple or obvious answer to the question whether
the hlandate as a whole lapsed when supervision fell away on dissolu-
tion of theLcague.It cannot be sajd, and Respondent has not contended,
that the element of Leaguc supervision possessed a quality of such ab-
solute essentiality that the whole Mandate became objectively or rne-
chanically inoperable upon the dissolution of the League. Indeed, most
ofthe obligations under the alandate are quite capable of existence and
performance without any supervision. However, as pointed out in the
Counter-hlemorial,
"[aln institution rnay, after disrnemberment of some of its parts,
still be capable of performing sorne of its erstwhile functions, al-
though such performance rnay be entirely ineffcctive to advance
the purposes for which tlic institution was created 2".
Here again it must be conceded that the substantive purposeç for which
the mandate institution was created can still be advanced, even in the
absence of supervision. But he that asit may, the question whether the
hlandate as such is to be regarded as stilbeing in force, insuch a reduced
form, is one the answer to which must depend on the intentions of the
authors of the Mandate 3.
I-Iowever, inasmuch as the future dissolution of the League was in
fact not contemplated at the stage of jts foundation 4, it follows that the
authors ofthe Mandate could not have had any actual intention regard-
ing the continued existence or otherwise of the Nandate in the event of
sucli dissolution. The present enquiry must, therefore, relate to their
presumed rather tlian their actunl intentions. And the main guide to the
presumed intentions of the authors of the Mandate in the respect under
consideration is afforded by an appraisal ofthe role intended to be played
by, and degree of importance attached to, League supervision as an
element in the mandate system
4. Respondent must concede that the question thus placed before the
Court is not an easy one. That the duty to account to, and submit to the
l Barcelona Traction, Light und PowevCompany Lirnited, Preliminary Objections,
Judgmcni, I.C.J. Reports 1964,p.6 at p.145.
* II, p. 166.
Jbid.,p.165.
Vide Chap. III, para16, supra.
' II, pp,166-167.60 SOUTH WEST AFRICA
supervision of, the Leagile, formed an important element of the mandate
system, is not open to doubt. On the other hand, whether it was regarded
by the authors of the system to be of such importance as to constitute a
sine qua non ofthe whole system, must necessarily to a certain extent
remain a matter of speculation, evaluation, or judgment, on which no
definite proof either way can be produced.
In the Counter-Memorial Respondent showed that opinions have
differed on this point. Thus Respondent interprets the 1950opinions as
holding that the Mandatory's duty of report and accountability was
severable frorn other aspects of the mandate institution l. However,
certain views expressed in the Judgment and in the separate opinion of
Judge Bustamante on the Preliminary Objections, appear to be in con-
Aict with the 1950 opinions on this aspect =.Kelerence was also made in
the Couiiter-hlemorial to the importance attached by various States to
the duty of report and accountability. In view of Applicants' total rejec-
tion of even the possibility that the Mandate may have lapsed inloto ,t
may be useful to have some more detailed regard to the attitudes whch
emerged on the part of various States, at and shortly after dissolution
of the League, on the question whether mandates in general, and the
Mandate for South West Afnca in particular, were still in force. This is
done in the next siicceeding paragraphs.
5. At the time of the dissolution of the League, there cannot be said
to have been an explicit, uniform statement of opinion on the part of
the States concerned regarding this question. Nevertheless certain indi-
cations afforded are of considerable significance.
It will be recalled that at the final session of the League Assembly,
the various members of the League administering territories under
mandate expressed their intentions as to the situation that would apply
pending "other arrangements" 4,and that in the final resolution of the
Assembly regarding mandates the general purport of these intentions
was described as follows:
". . .to continue to administer them [the territories] for the weli-
being and development of the peoples concerned in accordance with
the obligations contained in the respective niandates ... 5".
It wilI also be recalled that in the actual statements, the "expressed in-
tentions" were carefully confined tothe administration of the territories
as above described, and that some of the statements pointedly intimated
that there would be no accounting in accordance with the Mandates to
a supervisory authority 6.
The wording of the resolution itseif, read against this background,
was obviously very carefully chosen. It was equally consistent with two
possible points of view. The first of these would be that accountability
to a supervisory authority was not an essential for the various mandates,
and that the mandates could therefore continue in force without this
feature. When regard is had to the wording employed in the actual
l II,videalso Oral Proceedings, Oct. 1962.
2 II, p.168.
Ibid.,pp.167-168.
Ibid.PI). 46-49.
5 L. ofN.. O.J.,Spec. Suppl.No. 194,pp. 278-279, asquotedinII, p.52.
II, pp 136-137. REJO~NDER OF SOUTH AFRICA 61
declarations, the following are examples which would prima facie seem
to indicate adherence to this view :
New Zealand :
"New Zealand does not consider that the dissolution of the League
of Nations and, as a consequence, of the Permanent Mandates
Commission will have the effect of diminishing hef obligations to the
inhabitants of Western Samoa, or of increasing her rights in the
territory ... l"
"After the dissolution of the League of Nations and the consequent
liquidation of the Permanent Mandates Commission, it will be
impossible to continue the mandates system in its entirety.
Notwithstanding this, the Government of Australia does not
regard the dissolution of the League as lessening the obligations
imposed upon it for the protection and advancement of the inhabi-
tants of the Mandated territories, which it regards as having still
full force and effect 2."
South Africa
"~he disappearance of those organs of the League concerned with
the supervision of mandates, pnmarily the Mandates Commission
and the League Council, will necessarily preclude complete compli-
ance with the letter of the mandate. The Union Government will
nevertheless regard the dissolution of the League as in no way
diminishing its obligations under the mandate ... l"
6. The other possible view with which the wording of the League
resolution was in consonance, would be that indicated in the following
passage in the joint opinion of Judges Spender and Fitzmaurice on the
Preliminary Objections:
". .. al1 this could be regarded almost as a recognition that, upon
this dissolution, the Mandates, as such, would cease to be in force,
but that, pending other arrangements, the territories concerned
would, in relation to their inhabitants, continue to be administered
as if the Mandates were stillin force, or on the same basis as that of
the Mandates. What the League was concerned with was ... the
interests of the indigenous peoples, and to be assured of 'the con-
tinued application of the princifiEes of the Mandate Systena '."
(Italics in original text.)
In discussing this proposition further, the said two members of the Court
spoke of "... the basjs that the dissolution of the League might be re-
garded as terminating the whole Mafidates System" andadded :" ...which
is what we think those in Geneva had in mind . .." 4. (Italics in original
text.) Adherence to this point of view would seem to be indicated par-
ticularly in the following two statements by Mandatories:
United Kingdom :
". .. it is the intention of His Majesty's Government in the United
l Ibid., p48.
3 South West Africu,Preliminary Objections,Judgmenl, I.C.J. RePor1962.p.3 ig
at pp. 528-529.
+ Ibid.. p52% SOUTH WEST AFRICA
Kingdom to continue to administer these territories in accordance
with the general principles of the existing mandates l".
France :
"The French Government intends to pursue the execution ofthe
mission entrusted to it by the League of Nations 2."
Tndeed, when the staternents by New Zealand, Australia and South
Africa are read as a whole and in their context, then, deçpite the prima
facieimpact of the estracts referred to above, it is possible to reconcile
them also with the second point of viey. The accent would for this pur-
pose fa11 on the word "considers" in the case of New Zealand and "re-
gard" in the case of Australia and South Africa-the sigiiificance being
that even though the mandates may, as such, cease to bc in force, these
Mandatories would nevertheiess considev or regard their obligations in
respect of the inhabitants of the territoriesas not being extingiushed or
diminished.
7. Judges Spender and Fitzmaurice, with reference to ,the above-
mentioned second view of the situation, proceeded to mention a posçi-
bility on which they did not consider it necessary to espress a decided
view, viz.,
". .. to imply (on that basis) from what was said, an undertaking to
continue to apply those provisions of the Mandate wliich had refer-
ence to the inhabitants of the territory, and were not, according
to their terrns, directly dependent on, or harneçsed to, the contin-
ued existence of the League or of League Membership 3".
Respondent has already contended in the Counter-l\lem~ria!~ that
the statements by the Mandatories concerned were espressions of
intention only, as they were indeed described in the Leaguc resplution,
and that they could not be regarded as promises or undertakings in-
tended to create rights or obligations vis-à-vis other States. Applicants
have in no way attempted to controvert or even to deal with this con-
tention or with the reasoning advanced and authority cited in support
thereof, and Respondent abides thereby. In addition, however, Respond-
ent may point out that if the Court should hold to the contrary, viz.,
that the statementç in question resulted in legal obligations regarding
administration of the territories and the well-being and development of
the pcoples concerned, then the practical result would be the same as
that of a finding that the Mandate has survived but without account-
ability to a supervisory authority. Further reference in this part of the
Rejoinder to a possible finding that the Mandate has survived without
accountability, is therefore to be understood as including the possibility
of a survival on the basis of such a special undertaking on the Manda-
tory's part, except where the context or an express qualification indi-
cates othenvise.
What is of particular importance is that the duality dealt with above,
relative to the proceedingç regarding Mandates at the iast session of the
lII, p.46.Videalso p.136as to the further ligcaston this statementbythe
report ofthe United Sations Suecial Cornmittee on Palestine.
Ibid., p.47.
South West Africa, Preliminary,Objeciions, Judgmcnt, I.C.]. R1962,sp.319
at p.529.
11,pp. 246-247. BEJOINDER OF SOUTH AFRIC.4 63
League Assembly, concerns the choice between the two alternatives
contended for by Kespondent, viz.,
(a) lapse of the whole Mandate, or altcrnatively,
(b) survival of the Mandate without accountability to a supervisory
authority,
to the clear exclusion of the result contended for by Applicants, viz.,
survival of the Mandate together with accountability to the United
Nations asan integral part thereof.
S. In the years fillowing immediately on the dissolution of the League,
one finds the same duality as above in attitudes expressed by States in
proceedings of the United Nations.
A number of States expressed themselves to the effecteither that the
Mandate had lapsed or, at least, that it was open to serious question
whether it could still he in force. As examples reference may be made to
the following:
United States O# America :
Statement in 1947 in the Fourth Committee that Respondent-
". .. had no legal title to the territory at present, because its
only title was a hlandatory under the League of Nations" l,
and a later reference in the Trusteeship Council to ". .. the pre-
sent mandate, admitting that it exist l".
Soviet Union :
Statement in the General Assernbly (Plenary) in 1947 that-
". . . the South African Government . . . set up an absurd juridical
status for South \!'est Africa urhich consisted inthe administration
of South West Africa being carned out 'in the spirit of the League
of Nations Mandate' .. . absurd . .. now, in 1947, after the League
of Nations and the mandate system have ceased to exist I".
In 1948 in the Trusteediip Council that-
". . . the status of the Territory was at present undetermined ... it
should not be forgotten that both the mandate system of the League
of Nations and the Permanent Mandates Commission no longer
existed. Hence, there was no legal basis for the adrninistrat~on of
that Territory by the Union of South Afnca =."
Frattce :
Reference in 1947 in the Trusteeship Council to ". ..the former
mandated Territory of South West Africa ... 'j3.
And a statement in 1948 in the Fourth Committee that-
". . . the Trusteeship System had been substituted for the Mandate
System. Once the League of Nations had ceased to exist, so had the
institutions which functioned under itç aegis .. . there remained
nothing of the Covenant of the League of Nations except its moral
influence . . . The South African Government had on several occa-
sions expressed its desire to administer the Territory ... in the
II, p281.
2 Ibid., p. 283.
Ibid.. pp276-277. SOUTH WEST AFRICA
spirit of the Covenant. Itaccepted the moral obligation ofensuring
the well-being and the development of the population . .. l."
United Kingdm :
Reference in 1948 in the Trusteeship Council to the fact that
". ..South West Africa ... was formerly under mandate" *.
China :
Statement in the General Assembly (Plenary) in 1947 that-
". ..we al1know 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 [South West
Africaj under a living system than under the shadow of a ghost
systern? j"
Colombia +, Iraq 5, Uruguay in 1947 6, and Costa Rica 6, al1 stated
explicitly that in their view the Mandate was no longer in force.
Cuba in 1947 4, and the Netherlands in the same year ' implied the
same.
The United Nations SpeciaECommitlee on Palestine, consisting of
II States s, which reported in 1947, was emphatic on the point that
there could no longer be accounting to a supervisory authority in terms
of a mandate, and as a result considered that it might "be senously
questioned" whether a mandate could now exist in law 9.
Allowing for overlapping in the case of two States (the Netherlands
and Uruguay), the above makes a total of zo States which either con-
çidered that the Mandate was no longer in force, or at least senously
questioned whether it could still be in force.
9. On the other hand there were, in the years immediately following
the dissolution of the League, also statements and other indications of
views that the Mandate was stillin force. Particularly in the firsttwo
years after the dissolution of the League of Nations, tliese statements
were, however, often not very explicit. In many instances a view that the
Mandate was still in force can be deduced only from the unqualified use
of expressions such as "the hlandated Territory" or the "present Man-
date". Sometimes such expressions were, in the respect under discussion,
ambiguous. As will be seen, some of the States were also not con-
sistent in their attitude. As examples of statements to the effect that
the Mandate was still in existence, reference may be made to the follow-
ing :
Pakistan :
Reference waç made in1947 to "the present Mandate çystem" 'O.
II, p. 283,
Ibid., p284.
Ibid., pp275-276.
' Ibid.,p.276.
Ibid.,pp i.77-278.
Ibid.,p. 282.
Ibid.,p.278.
hustralia, Canada,CzechosIovakia, Guatemala, India, Iran,the Xetherlands.
PeruII. pp.69 and 167.nd Yugoslavia.
'OC.A., O.R. ,econd Sess.Vol. 1,105th Plenary Meeting. I Nov. 1947,p. 618. REJOINDER OF SOUTH AFRICA 65
Australia :
Speaking in 1947 ,n Australian delegate said that control of the
Territory by South Afnca as a "Mandatory Power" was a "situa-
tion which has existed ever since the end of WorId War 1"=.
Dertmurk:
Reference wasmade in 1948 to South West Africa as a "Mandated
Territory" 2.
Rominican Republic :
A delegate said in 1949 that it was "indisputable that the ~gzo
Mandate was still in force" 3.
France :
A statement was made in 1949that-
"[tlhe Territory of South West Africahad not been placed under
the Tmteeship System; it therefore remained under the mandate
system. The Fourth Committee, however, was not able to take
the place of the Pernianent Mandates Commission, which had
been differently constituted '."
Liberia :
Stated in 1949 that ".'. .South West Africa was a Mandated Terri-
tory and it did not form part of the Union of South Africa" s.
The above States did not couple their statements regarding the survi-
val of the Mandate with any contention that the United Nations had
replaced the LeagueCouncilas supervisory organ-where they contended
that Respondent was under an obiigation to render account, such conten-
tion was based on an alleged duty to conclude a tmteeship agreement
or to furnish information in terms of Article 73 of the Charter. In addi-
tion, however, as has been noted 6,certain States adopted the attitude,
but only as from the end of 1948, that the Mandate had continued in
existence, and that a succession of supervisory organs had taken place.
They were Belgium, Brazil, Cuba, India and Uruguay.
Reference was also made in the Counter-Mernorial' to certain incon-
sistencies in the attitude of some of these States on the question of ac-
countability. It may be instructive to note also the uncertainty displayed
by one of them, i.e., Uruguay, regarding the surlival of the Mandate.
In the 1948 address referred to in the Caunter-Mernorial in which it
was stated that Article 80 (i) of the Charter "clearly safeguarded the
rights of indigenous populations", the diçtinguished representative later
said that-
"... the Union of South Africa no longer possessed any juridical
l G.A ..O.R., SecondSess.,op cit., p. 585Videalso p.581.
G.A.. O.R., Third Sess..Pari 1, Fourth Comm., 81st Meeting, IGNov. 1948,
P. 349,
' G.A.. O.R., FourthSess.,Fourth Comm., 135th Meeting, 24 Nov. 1949, p. 247.
' G.A., O.R.. Fourth Sess., Fourth Comm.. 139thMeeting, 28Nov. 1949.p. 269.
para. 8 above.ted that this staternent is in apparent conflict with those quoted in
-'C.A., O.R., FouvlhSess.,269th Plenary Meeting, 6 Dec. 1949. p. $32.
II,pp. 70-71.andpassages there quoted.
Ibid.,p. 70.
Ibid., pp.70 and 284-285. SOUTH WEST AFRICA
rights over South West Afnca since it held only the title of Manda-
tory Power on behalf of the League of Nations '".
And later in the same debate, another representative of the same State
said that ". .. [the] basic obligation in the Mandate was still in esist-
ence . .." 2.
A general indication of the views of Members of the United Nations
may alço bc gained from the teminology empkoyed in early resolutions
regarding South West Africa. Thus in the years 1946 to 1948 expressions
such as "the Alandated territory of South 1Vest Africa" and "territories
now held under mandate" were not inlrequently used 3. However, the
use of such expressions, which became less frequent with the years, was
entirely avoided in 1949, when South \Vest Aïrica was consistentljr re-
ferred to only as "the Territory of South \Vest Africa" 4,and when an
Advisory Opinion was requested, inter dia, on the following question:
"Does the Union of South Africa continue to have international
obligations under the Mandate for South West Africa and, if SO,
what are those obligations? 5 "
The impression is consequently created that the ivording employed inthe
earlier resolutions did not necesçarily reflect a view (or, at any rate, iiot a
considered and firm view) that the Mandate was still in existence, but
was probably only a loose and inaccurate use of laquage.
IO. The above-mentioned differences of opinion emphasize the difficul-
ty of the question whether the dissolution of the League, and the conse-
quent lapse of accountability to supervisorp organs, resulted in the whole
of the Mandate ceasing to be in force. It rnay be pertinent to recall that
there was quite evidently for a long timc no difierence of opinion at al1
on the point that acc~untabilit~r under the Mandate had lapsed. While
at least 25 States maintajned quite clearly that, outside of trusteeship,
there was no accountability to the United Nations or any other body,
this view was, for more than two years after dissolution of the League,
not contested by any single State, nltliough in 1947 alone 41 States took
part in United Nations debates on Soutli West Africa 6.The difference
was therefore confined to tlie further question whether the Mandate a5 a
whole had lapsed.
On balance, and for the reasons stated in the Counter-hlemorial,
Respondent submitted ". .. that the feature of report and accounta-
bility to the League was intended to be an integral portion of the Man-
date Systern .. ." 7,and that the lapse of Respondent's obligations in
this regard-
".. . has resulted in a situation which renders it impossible for a
G.A., O.R.. Third Sess.. Par! I, Fouvth Comm., 78th Meeting, II Sov. 1948,
P. 3Ibid., 8zndMeeting, 17 Sov. 1g46, p. 3Go.
Vide C.A. Resolution 65 (1), 14 Dec. 1946, in U.N. Doc.A/G4/Adrl.i, p. 123;
G.A. Resolution141 (II),INov. 1947 in U.N. Doc. Al519.pp. 47-46:G.A. Resolztlion
227 (III),26 NOV. 1946, in U.N. Doc. R[Rro, pp. 89-91.
Vide G.A. Resolution 337(IV), 6 Dec. 1949,in U.N. Doc. A/Iz~I, p.44.
G.A. Resolution 338 (IV), 6Dec, 1949,in U.N. Doc. A/IZ~I, p. 45:
II, pp.140-141(para.4ra and b) readwith pp. 68-71, Some Statesdid. however.
contend that Respondent was subject to the iesser obligation to transmit informa-
tion in terms of Art. 7(el of the Charter.
[Md., p. 16g.68 SOUTH WEST AFRlC.4
mandate, is clearly apt to be misleading. lt may well be that Applicants
intended to use tlie espression "international accountability" in a g-eneric
sense, broad enougb to cover both the obligations respectivelÿ contended
for by the Parties. Eut even on that basis, in view of the wide divergence
betwceii the Parties' submissions regarding the content of the obligation,
it does not appear to conduce to clarity of tlioiight to lump them togetl.ier
under onc descriptive appellation, and tlien tn çtate that their essentialitj.
is a matter of common cause.
13. Secondlp, apart from the difficulty regarding the expression
"international accountability", Applicants' statement is inclined to create
a misleading impression as regards tlie very crus thereof, viz., the concept
of "comrnon cause" concerning essentiality. Everi assuming that "inter-
national accountability" is to be understood in a sense which stands
neutrally betivcen the conflicting contentions mentioned in the previous
paragraph, it still cannot be said, w~ithoiitqualification, that Respondent
lias identified itself with Applicants' attitude about international
accountability being "of the essence" of the Mandate.
The attitude in question on Applicants' part iç basic and unqualiiied-
a "major premise" of Applicants' case, whicti is advanced as one wliole
without any alternatives, viz., that the Mandateexists intact, Le., includ-
ing, as an integral part thereof, an obligation to account to a super-
visory body '.On the other hand, Respondent's submission on the ques-
tion of essentiality or otherwise of the element of accountability isneither
basic nor unqualified. As has been shown above, Respondent's basic and
unqualified contention is that the element of accountability to a super-
visory body Iapsed on dissolution of the League =.That contention stands
by itself, on its own merits, and is not dependent on, or qualified by, any
contention or argument raised by Respondent in regard to other issues 2.
In particular, the conclusion of lapse of accountability is advanced by
Respondent as an overriding one, standing independently and irrcspec-
tively of the furtlier question whether ariy other part or parts of the
Mandate did or did not survive the dissolution of the League. It follutv~
tliat thesaid conclusion isalso ad\raticeclindependently and irrespectively
of the question whether the elemcnt of accountability is to be regarded as
a severable or as an inseverable (esçential) part of the mandate itistitu-
tion. The latter question anses onlp in a secondary manner, following on
the prernise of lapse of accountability: it provides the key to the further
question whether any 0th part of tlie Mandate survived the dissolution,
or whether the whole lapsed as a consequence of lapse of accountabiiitjr '.
Consequently, Respondent's contention in this respect is a twofold one.
advanced in the alternative, viz.,
(a) that accountability to the League supervisorp organs was intended
by the authors of the mandate spstem to be an essential part of the
Mandate, with the result that the whole Mandate lapsed upon
dissolution of the League;
(b) alternatively, and on the hnsis of tlie Court finding against the
proposition of essentiality of the accountability (in other words in
favour of severability) that the Mandate continues in existencc but
Para. I,supra,and other passages there referreto.
' Para.2. supra, andother passages there referred to.f0 SOUTH IVEST r\FRICA
the part of the founders of the United Kations at the time of its estab-
lishmelit, and/or of the remaining Rlembers of the League at the time of
its di;solution, that accountability to some international body was
essential fora propes functioning of the Mandate, could not in Iaw bring
about a.lapse of the Mandate, unless such view led to an agreement to
that cffect, towliich the Mandatory would have l-iadto bc a consentinç
party. Nor could such a view have resulted in nn obligation on the part
of the Iilandatory to account to a new supervisory body-again Save bj.
agreement with, or with the conseiit of, the hlandatory. Respondent
has given full reasons showing thai rio such agreement mas entered into
nor any such consent given l,and Applicants do not join issue therewith
in the Reply ?.
Agairi, a view or contemplation on the part of the authors of the
mandate system that accountability to a supervisory body was "essen-
tial" or "of the essence" in a sense other tlian the above, could not be
of decisive significance to the question at issue. So, for instance, if the
authors rnercly considered that such accountability was a desirable
spur to diligence on the Mandatorp's part in the perfovmance of its obli-
gations,but not indispensable for the existeficeof the Xandate, it follows
that, upon disappearance of the supervisory organs mentioned in the
Mandate, such a contemplation could in itself bring about neither the
lapse of the Mandate nor the substitution of new supervisory organs.
17. On the basis, therefore, that "essentiality" or being "of the
essence" relates to a contemplation or intention on the part of the au-
thors of the mandate system that the Mandate was not to exist mithout
accountability to a supervisory organ, and açsurning that such \\+asin-
deed their intention,what ~vouldthe effect ofdissolution of the League be?
In ordinary logic the answer, in Respondent's submissiori, preaeiits
no difficulty. The dissolution of the League brought to an end the exist-
ence of the only superi7isory bodies mentioncd in the Mandate or the
Covenant. Hence accountability to supervisory bodies would terminate,
unless there ivere some provision in law for the substitution of a new
supervisory body or bodies. And such termination of accountability
would, in sccordance with tlie intentioiiof the nuthors of the mandate
systern,mean the end of the Mandate.
Conçequently, on the above premises, the question of survival or
otlierwise of the Mandate would depend on whether or not there was
any provision in law for substitution of supervisory bodies. Respondent
has already demonstrated, conclusi\~elyin its subrnission, tliat there was
no such provision for substitution 3,and that the only proposition by
which Applicants attempt to show the contrary, viz.,the "organized
international cornmunity" theory, is without substance 3. Indeed, bl-
the mere fact of advancing this theory, Applicants by implication
concedc that provision for a substitution of supervisory authority was
a requisite for the existence of accountability after the dissolution of
the Leagile. The absence of provision for substitution therefore means
the end of accountability as at dissolution of the League, and, oii tlie
abovc prcrnises, the simultaneous end of tlic Mandate.
18. The conclusion just stated rests, as has been indicated, or1ordi-
l II. pp. 124-163.
Chap. 1lI, para46,supra.
Chap. 1Ilsupra. REJOISDEK OF SOIJTH AFRICA 71
nary considerations of logic. Given the postulates that the supervisory
organs lapsed witliout successors, and ttiat "international accountability"
\vas, in the contemplation of its fouriders, an essential element in the
mandate system, the conclusion is logically inescapable that the Man-
date as a whole has lapsed.
This proposition is pertinent]!? supported by a passage from the dis-
senting opinion ol Judge Alorelli in the Barcelona Tracdiottcase '.The
question at issue in that case was whether a cornpromissor clause in a
treaty of 1927 bctween Relgium and Spain was still in orce. In the
course of the proceedings, an argument was raised regarding the effect
of the riltegecinseverability ofthe compromissorÿ clause. The Court did
not find it nccessary for the purposes of its Judgment to express an
opinion on the rnerits of this argument *.Judge hlorelli, however, dealt
therewith. Alter finding that the compromissory clause in the treaty
under consideration had Iapsed on the dissolution of the Permanent
Court, the lcarned Judge stated:
"This result cannot in rny view be set aside by arguing, as does
the Belgian Government, the insepacability of the provisions of the
1927 Treaty. It is dificult to jînd any reasonwhy this allegedinsepa-
rability should lzavethe eflectof keeping Article17 (4) [i.e. the com-
promissoryclaztse]in force,ratherthnn the contraryegectof entailing
the lapse oj the enlire treafy.
In rny opinion there can be no doubt that Article 17 (4) lapsed,
for lack of object, as a result of the dissolution of the Permanent
Court. ... The fate of the other provisions of the 1927 Treaty is of
no interest. But ifit is desired also to consider tlie question of the
, preservation in force of the other provisions of that Treaty, what
consequence must be drawn, for the solution of that problem, from
the assertion that the Treaty constitutes an inseparable whole?
If it is considered, as does the Belgian Government, that 'resort to
adjudication is an csse~ztial art ofthe economy of the treaty' that
'the various methods of settlement urere carefully combined, so
that to remove those which concern the Court amounts to dis-
rnantling the whole system' and that Article 17 (4) 'was an esserztiaE
condition for the consent of the parties to the treaty as a whole'
the inevitable resdt, assumiizg the impossibility, thus nfirmed, of
separability of the provisions of tlw Hispano-Belgia~zï'reaty, would
simply bethat theentiretreaty hns Eapsed 3." (Italics added.)
19. For the rensons aforestated, Kespondent submits that the "essen-
tiality" of "international accountability" resulted in the lapse of the
hfandate as a whole, and not in its amendment to provide for fresh
supervisorjr organs.
The co*~fention lhat "infenzationul accozrntabz'lilyusl survive so long as
rightsor powersoverthe Territory areusserted"
20. There remains for consideration the contention advaiiced bu
Appiicants in the passage from the Reply quoted in paragraph rr above,
BnrcelonaTvnction,Ligkt and Power ColnprrnyLimited, PveliriailzavyObjections,
jirdgment,J.C.J. Keparts1964p. 6.
Ibid.pp.334-95.72 SOUTH WEST AFRICA
viz., ". .. that international accountability must survive so long as
rights or pourers over the Territory are asserted, as the Court I-iastupice
made clear". This contention appears to correspond to a suggestion
made in a iiegative form earlier in the Keply l,viz., thrit there cannot be
". . . any basis for [Iiespondent's] disclaimer of international accounta-
bility while at the same time maiiitaining rights of administration and
possession over the Territory". In the next succeecling paragraphs Ke-
spondent deals with the apparent meaning of the contention, with the
suggestion that it has twiçe received the blessing of the Court, and with
its merits.
21. As regards the apparent meaning of the contention, Respondent
is confronted with the difficulty that Applicants nowlicre develop it,
or explain exactly what they mean by it, or indicate on what inter-
pretation or principle of law or logic, it is sought to be based. Applicants
do not even say whether the contention is advanced independently of
their "organized international community" theory regarding succession
in respect of supervisory bodies, or whether it merely states a result
arrived at viathe applicatiori of that theory.
That Applicants may well have intended the second of these alter-
natives, flows, inte rlia,from the very fact that whcreas extensive dis-
cussion is offered in an attempt to support the "organized international
comrnunity" theory, tliere is in regard to the contention under con-
sideration no presentation at al! of that kind, as one would have es-
pected if it were rneant to be advanced asan independent, alternative
argument, standing by itseif and on its own merits.
It will be recalled that Applicants base their "organized international
community" theory, inter aliao ,n the premise that "intcrnational ac-
countability" was intended to be an essential element of the Mandate '.
If, asfurther contended by Applicaiits, Respondent was ab initio obliged
to account to "the organizcd international community" or its appropriate
organ, and if the United Nations for this purpose became the "organized
international community" or its appropriate organ, then there would,
of course, at the dissolution of the League, have been no lapse of the
element of accountability, and therefore no consequcntial problem of
lapse of the Mandate as a whole. In other words, the Jlandate would. on
the hypothesis stated, have continued intact 3,with accountability to
the United Nations as an integral element thereof. Consequentlj., still
on the hypothesis stated, it would be perfectly correct to state the con-
clusion arrived at in terms of the contention under discussion, viz.,
"that international accountability must survive so long as rights or
powers over the Territory are asserted", and that there cannot be a
basis for "disclaimer" on Respondent's part "of international account-
ability while at the same time maintaining rights of administration and
possession over the Territory". And on this premisc the words "as the
Court has twice made clear" would also be understandable, as referring
merely to a proposition which has indeed twice been stated and which
Respondent has never disputed, viz., that "[tjoretain the rightsderirred
IIbid.pp. 239-240.
Le.. leaving out of account, for present purposes, independent questions regard-
ing survival or otherwise of the comprornissory clause. REJOIXDER OF SOUTH AFRICA
73
frorn the Mandate and to deny the obIigations thercunder could not bc
justifiecl"'.
At the same time, Iiowcver, the contention would of course, on this
uiiderstanding of its meaning, rest entirely on the soundness or otherwise
of the "organized international community" theory regarding succession
or substitution of supervisory organs. Consequently it would, in reply
tliereto, be sufficient to saqr that the said theory has already, in Ke-
spondeiit's subrnissiori, been shown to be entirely without substance 2,
and also that it has never received endorçement or appro>-al f~om the
Cotirt or from any member thereof 3.
22. Respondent proceeds, however, to consider Applicants' above
contention on the supposition that it is advanced independently of the
"organized international community" theory, or sny other theory of
succession, as an alternative argument for coming to the concIusion that
the Mandate still exists together with an obligation of "international
accouiitability" as an integral part thereof.
Seen in this light, the contention must apparently be taken to convey
the following: frorn the $remise that "international accountability" wns
intended by the authors of the mandate system to be an essential, in-
dispensable part of the Mandate, there follows the conclusi onat as long
as liespondent "asserts" or "maintains" rights or powers of administra-
tion and possession oves the Territory of South West Alriea,it must be
under :in obligation of "international accountability".
It will immediately be apparent that the contention, thus under-
stood, suffers from two fatal defects, viz.,
(ri) the conclusion is a non sequitur: it is not substantiated by the
premise, and would only be valid on introduction of an additional
premise, viz., that the Mandate is still in existence; and
(b) no solution is offered to the problem of the supervisory body to
which the obligation of accountability woiild relate after dis-
appearance of the only supervisory bodies mentioned in the for-
rniilation of the obligation in the mandate documents.
As will be shown in the succeeding paragraphs, these defects relate to
the basic substance of the contention, and not to the mere fortuitous
circumstrince of the words in which it has been expresçed by Applicants.
First, however, Respondent has to point out also that neither the
Court, nor any rnember thereof, has ever expressed a view or finding
whicli endorses a proposition as now under discussion. The Court in 1950
treated the obligation of accountability as being severable from other
aspects of the Mandate, and based its judgment regarding survival of
accoiintability on a finding which in effect reçted on a tacit agreement
considered to have been entered into during 1945-194 providing for
substitution of supervisory organs +.And in 1962 the Court left open
the question whether the obligation of accountability had lapsed 5.
Applicants have made no attcmpt to answer Reçpondent's analyses in
1 Iwternntional StatuofSouthWest A frica, Aduisory Opinion, I.C.J. Repovts 1950.
11.1.2satp. rjj and South West Africa, PreliminavyObjections. Judg;ncnt, 1.C.J.
Reports 1962,p. 3r9 atp. 333.
3 II.1'.122(para.a14).
+ Ibid.,pp. 141-146.
Ibid.. pp. 156-161.74 SOUTH WEST AFRICA
the Counter-3lemorial of the 1930Opinionand 1962 Judgrnent in these
respects.
25. To return, then, to the merits of Applicants' contention l, and
the above-mentioned defects in respect thereof, Resporident submits
that a cardinal consideration of logic is ignored therein. This consider-
ation is that, as soon asthe premise is accepted or nssumed tliat account-
ability is essential for the existence of the Mandate, then an enquiry
whether the Alandate could and did survive the dissolution of the League
cannot be divorced frorn an enquirywhether accountability. as prescribed
in the hlandate, could and did survive such dissolution :the two aspects
of the enquiry then form one integral whole, and neither aspect can be
answered separately from the other.
So, for instance,it would be quite impermissible to enquire firstwhether
parts of the Mandate other than accountability, e.g., the sacred trust
provisions of Articles 2 to j, were capable of surviving the dissolution
of the League, and, upon reaching an affirmative answer, to conclude
secondly that the Mandate must therefore still be in existence, and then
to add, thirdly, that inasmuch as accountability is an essential or in-
severable part of the hlandate, therefore accountability must also still
exist. Such ~nethod of argument would involve the obvious error of a
change of premise en route. The conclusion reached at the second stage
thereof could orily I)ejustified on a premise of severability of the sacred
trust provisions from the element of accountability, whereas the con-
clusion at the third stage would require and use as brisis the very op-
posite premise of essentiality, Le., of inseverability of accountability
from the other provisions.
Yet this would seem to be the very defect implicit in Applicants' con-
tention, understood in the sense as now under consideration, resulting
jn the nogrsegiritzirrnentioned above 2.It is quite obvious that one can-
not Say that adnzinistration of a certain territory must be subject to ac-
countability merely because accountability is an esseiitial element of a
mandate. The statement would onl!; make sense upon adding or pre-
supposing that the mandate which requires the accountability, applies
to the territory and its administration. In the present contest this means
a presupposition that the Mandate for South West Africa still exists. It
therefore seems that this presupposition must be underlying Applicants'
said contention, as a major premise. The line ofreasoning is apparently
that the existence of the Mandate is not open to question 3,and that given
the essentiality of accountabiIity, the obligation of accountability must
therefore also be in existence. The cardinal error lies in the combination
of the two premises that the Mandate exists and that accountability is
essential to its existence. The only basis upon whichit can $ossibly be said
that theexistenceof the Mandate is not @en to question, is lhat of accepting
tlmt its sacred trust provisio~zscalz stand by themselves, willrozrtaccount-
ability. As soon as the premise is itttrodtlced that accoztntability was in-
tended to be essenlial for the existence of the Alandate, Ihen the question
whetlrerthe ilfandate still exists mtist depend, inter alia, o~cthe question
i~kther ifs provisions regarding acco2tntabilityare di11capable of perform-
l1.e..if to be understood inthe sense indicated in par22, supra.
Surnlbered (a) in para.22. supra.
Applicants never advance any argument in support ofthe proposition that the
Mandate still exists: they merelrest on the Court's decision in that regard.76 SOUTH WEST AFRICA
possible application of the doctrine of preclusion or estoypel-to the
principles of which regard is first to be had.
26. The nature of the doctrine of estoppel has becn descrihed as
follows :
"\Vhatever term or terms be employed to designate this principle
such as it has been applied in the international sphere, its substance
is alwsys the same: inconsistency between claims or allegations put
fonvard by a State, and its previouç conduct in connection tliere-
with, is not admissible (allegans co.ntrurianon audiendzcs est).Its
purpose is always the sarne: aState must not be pemitted to benefit
by its own inconsistency to the prejudice of another State (~ieww
potest mutare consilium suum irtalterius injilriam) . A fortiori, the
State must not be allowed to benefit by its inconsistency when it is
through itsown wrong or illegal act that the other party has been
deprived of its right or prevented from exercising it. (Nullus
comrltodum caperedesua ifijuria$topria.) Finally, the legal effect of
the principle is always the same: the party which by its recogiiition,
its representation, its declaration, its conduct or its silence has
maintained anattitude manifestly contrary to the right it is claiming
before an international tribunal is precluded frorn claiming that
right (venire contrafndum firopritmmnon valet) '."
The elementç of estoppel or preclüsion are consequently clear: in order
to invoke it, a party must show-
(a) an attitude previously adopted by the party sought to be precluded;
(b) the bringing about, as a result of such attitude, of "a change in
the relative positions of the parties, worsening that of the one,
or improving that of the other, or both" 2;
and
(c) a present claim which is "manifestly contrary" to the attitude
previously adopted.
It will be apparent thatthe starting point and basis of any applic t' a ion
of this doctrine is theattitude adopted by a party, which such party may
be precluded from changing subsequently. The manner in which such an
attitude was expressed, is not important. In the words of Judge Alfaro,
,,.. . [it] may take the fom of an express written agreement, decla-
ration, representation or recognition, or else that of a conduct which
implies consent to or agreement with a determined factual or
juridical situation *".
In consonance with the terminology of English law, such an expression
of attitude is often referred to as a "representation", altliougli the
accuracy of defining estoppel as necessarily involving a representation
has been doubted 5.
27. matever term is employed, and in whatever manner a party's
prior attitude has been manifested, it is patent that such manifestation
Temple O/Pvenh Yihear, AferifJudgwzent, I.G.J.Reports 1962,p.G stp. 40 pcr
JudgIbid.atop.63 per Sir Gerald Fitzmaurice.(Italicdeleted.)
Vide the above quotation from the opinion of JudgeAtfaro.
+ Ibid., p40.
Ibid., pp63-64 per Sir GeraldFitzmaurice. REJOINDER OF SOUTH AFRICA 77
must be u?lambiguousin the respect in which the party is sought to be
precluded from denying it. Thisrequirement follows from the very nature
of the doctrine-it is impossible to establish an inconsistency between
two attitudes if either or both of them are ambiguous in the respect in
question, and consequently capable of being reconciled. In addition,
however, the requirement that, for the application of estoppel, an
attitude must be a clear and unambiguous one, fiows from considerations
of fairnessand equity. A plea of estoppel is, in the words of Sir Gerald
Fitzmaurice,
". ..essentiallya means of excluding a denial that might be correct-
irrespective of its correctness. It prevents the assertion of what
might in fact be true l".
And the same learned Judge said with reference to circumstances in
which a party wasalleged to be precluded from denying the existence of a
binding undertaking or the acceptance of an obligation tliereunder:
"The real field of operation, therefore, of the rule of preclusion or
estoppel, stricto sensu, in the present context, is where it is possible
thatthe party concerncd did not give the undertaking or accept the
obligation in question (orthere is room for douht whetl-ierit did), but
where that party'ç ... conduct has been such, and has had such
consequences, that it cannot be allowed to deny the existence of an
undertaking, or tliat it is bound l."
Clearly a court would not hold that a party is bound to an undertaking
to which it did not in fact consent, or rnay possibly not have consented,
escept on the strength of the most unequivocal and unambiguouç conduct
or representations on its part.In the words of Sir Percy Spender,
". .. since the principle [of preclusion], when it is applicable to any
given set of facts, çubçtitutes relative tnith for the judicial search
for the tmth, it should be applied with caution 2".
It has consequentIy often been stated that the prior representation or
attitude to which n party may be hound, must be a clear and unambiguous
one. Thus Sir Percy Spender said that the principle of preclusion-
". .. operates to prevent a State contesting before the Court a
situation contrary to a clear and unequivocalrepresetztationpreviausIy
made by it to another State . . .2". (Itaiics added.)
And another authority stated that, as an essential of estoppei, "the
statement of fact must be clear and unambiguous" 3.
\iihere the prior representation or manifestation of attitude is not
contained in any document or statement, but is sought to be inferred
from "conduct which implies consent to or agreement with a determined
factual or juridical situation" 4, regard rnust be had also to another
factor, namely the basic considerations of logic which require that in
reasoning by inference, the concIusion sought to be inferred must be
consistent with al1 the relevant proved facts, and must be a necessary
Temple of Pveah Viheav, Meviis.Judgment, I.C. JHepovls 1962,p. 63.
Vbid., p. r43.
Rowett, D. JIr.."13toppel before InternationalTribunüls aiiditsRelation to
Acquiescence". R.I'.H.I.L.. \'olXXXIII (1957).pp. I~G-202 at pp. 188-190and
?O?.
Videabove quotation from Opinion by Judge Alfaro.7s SOUTH WEST AFRICA
inference in the sense that al1 other reasonable inferences are escluded '.
"If there are a number of rcnsonable inferences ïvhich niay be
drawn, including one of assent, then the hypothetical rrasonable
man is not entitled to select tlie inference of assent and to disregard
tlie others 2."
2s. Applying the above pririciples, Respondent will now esamirie
whether any undertaking, representation or attitude regarding the
continuation of "international accountability" can be inferred from its
"assertion" or "maintenance" of rights or powers of administr?tion and
possession over the Territory. It is to be borne iir rnind that th~senqiliry
proceeds on the assumption that, but for such "assertion" or "rnain-
tenance", "international accountability" would have lapsed on disso-
lution of the Lcague 3.
At the outset three points cal1for comment. The first is that the enquiry
cannot be confined to a consideratioii oiily of the facts, taken ittVUCZ~O,
of assertion or maintenance of riglits or powers of administration and
possession. The administration and possession of a territory are by
themselves essentially neutral facts with reference to the question
whettier "international accountahility" in respect thereol' is u~ldertaken,
acknowledgedorrepresented, neither advancingnor militatirtg against ariy
inference relative to that questioii. Only upon considering ail circum-
stances surrouiiding and attendant upon the administration and pos-
session concerned, could the yossibility aise of an inference either in
favour of or against an undertaking, acknowledgment or representation of
such account:ibility.
Secondly, it will be noted that in their contention undcr discussion,
-4pplicants refer only to the vague, abstract concept of "international
accountabiIity" rather than to any specific supervisory aiithority. This,
in Respondent's submission, is nol merely fortuitous. Administration aiid
possession of a territory are by themselves eïren more patcntly and
obviously unrelated to any specific supcrvisory authority than to a vague
idca of "international accountability". And yet, of course, Applicailts
carinot ultiinately evade the question of a specific supervisory authority.
Indeed, in tiieir conclusion as set forth, inter dia, in their Submissioiis
z, 7 and 8 +,Applicants do not allegc the esistence of an obligation of
"international accountability" i?r~acz~ob ,ut contend that Respondent IS
naw obliged to account to the Geiieral Assembly of the United Nations.
The facts and circumstances surrounding and attendant upon continued
administration and possession are therefore to be considered specifically
with a view towards determinirlg whether they give rise to any inference
regardingaccountability to this particular body.
Thirdly, Applicants' said submissions also concern accountability
under a mandate in force-ïvhich is another point left vague by the
contention under consideration. An alternative contention, which has
been raised by some States in international politics, but is not relicd
1 11,p.r4G.
2 l'er judge-PresidentGreenberg, regarding thisaspect of applicütioiiof tlie
doctrine of estoppelinthe Transvaal ProvincialDivision ofthe Supreme Court of
SouthAirica: Van Ryn Wine and Spirit Co.v.Chandos Bar, rg2S T.P.D. p. 417 at
PF 423-424.
3 Vide para.22.srrpra.
1,pp. 197and rgS. IZBJOISDER OF SOUTH .4FRICA 79
upon by Applicarits in ttic present proceedings, is that Rcspondent is
subject to "international accountability" by reason of an obligation to
conclude a trusteeship agrecrneiit. Such a contention is really irrelevant
to the present proceedings. Apart frorn the fact that tlie Court in ï9jO
rejected the contention of an obligation to enter into a trusteesliip
agreement, and tliat Applicants do not contest the correctncss of tfie
Opinion in that respcct, thcrc is ttiefundamental consicleratioii tlint the
present case is coiicerneti only with interpretation and application of
the Mandate, aiid more paiticularly, in its aspects imder discussion, witb
Applicants' submissions that the Mandate is in force and tliat Rcspondent
isby virtue of the provisions thereof under an obligation of accountability
to the United Nations. However, it may be useful for the sake of com-
pleteness to have regard in the succceding consideration of tlie facts to
a11aspects of the present enquiry, and to esamine \vhether Iilespondeiit's
continued "assertion" or "maintenance" of rights or powers of adminis-
tration and possession can give rise to an- inference of conscrit, actual or
bu estoppel, to "iriternationa1 accountability", either in the sense
contended for by Applicants iii their above-mentioned submissions. or i11
the sense of an undertaking to enter into a trusteeship agreement.
zg. The relevant aspects of Respondent's condiict in the respcct iinder
consideration are al1undisputcd facts, being for the most part stxted atid
fully substantiated hy Itespondent in the Countcr-Mernorial without
refutation in the Reply, and iri some instances statecl by Applicants
thernselves in the àlemorialsl.No more than a very brief sumniary of the
most important fcatures will conscquently be'presented I~erein. These
features are as follows:
(a) At the San Francisco Conference in Jfay 194j, as \vell as during
the proceedings of the Preparatory Commissian in Uecember 1945,
and at the First Part of the First Session of the General AssembIy
in January-February 1946, liespondent stated clearly and esplicitly
that it \vas reserving its position in regard to South ilTestAfrica, and
did not wish to bc understood as agreeing to any cornmitment to the
United Nations in that regard, its intention being to claim, on an
appropriate later occasioii, that the 3Iandate should hc terminated
and the Territory incorporated as part of South Africn 2.
(b) At the final session of the League Assembly in Alil-il1946 liespon-
dent announced its intention to seek international recognition
for the incorporation oi South West Africa. As far as its adniinis-
tration pending such recognition \vas concerned, liespondent
indicated clcarly that due to "the disappearance of thoçe orgai-isof
the League concerned witli the supervision of Mandates", there
\rouId be no accounting to a supervisory authorit. in respect of
such administration j.
'
(cl Upon rejection by the ljnitcd Nations of the proposa1 regarding
incorporation, Keçpondeiit oii several occasions during 1946 and
1947 announced its intention of continuing to administer the
Temtory in the spirit of the principles laid down in the Mandate '.
In these statements Responclent made it clear that it was not
' 17idealso paran5, supra.
II,pp 33-35(paras. 31 nii32)and 40-42.
Vbid., pp.46-48 and 13G.
* tbid., pp54-60.80 SOUTH WEST AFRICA
thereby consenting to any supervision by the United Nations, or
to any obligation to conclude a trusteeship agreement. Kespondent
did express an intention to transmit voluntarily, for the information
of the United Nations, statistical and other information "in accord-
ance with", or "on the basis of", or "of the same type ... as is
required for Non-Self-Governing Territories under", Article 73 (e) of
the Charter l. However, this intention was expresslv qualified to a
two-fold eflect, viz., firstly that the information "would not be consi-
dered by the Trusteeship Council and would not be dealt with as if a
trusteeship agreement liad in fact been concluded", and secondly
that it would be rendered "on the bnsis that the United Nations has
no supervisory jurisdiction", or iio "rigtit of control or supervision",
with regard to South West Africa 2.
\irhen the qualifications were nat oi~served by the organs of
the United Nations, the transmission of information was dis-
continued j.
Id) As from Kovember 1948, IZespondent repeatedlj. and consistently
denied that its continued administration oi the Territorv "in the
spirit of the Mandate" involved any undertaking or obligation
to submii to United Nations sripervision, or to enter into a trustee-
ship agreement '.
The above circumstances are, it is submitted, decisive in themselves.
Consent. actual or by estoypel, to an obligation of "accountability" 5
towards the United Nations, can be cstaklished only bu sha~ving, as a
matter of inference from the circumstances, a clear and unequivocal
undertaking, representation or attitude to that effect on Respondent's
part. An esamination of the circumstances, however, demonstrates the
very contrary, iiz.,tliat Resporident's attitude was cxpressed clearly and
unecluivocally to the opposite cffect, Le., to the effect that its continued
administration involved no undertaking or obligation of "accountability".
In the result it is strictly unnecessary to go any further, and, for instance,
have regard to the attitudes adopted by ottier States, which might other-
wisehave been relevant to cast light on a lcssexplicit attitude on Respond-
ent's part, or to show how Respondent's attitude was in fact interpreted
by others. However, for the sake of cornplctcness, brief attention mili
be given to this aspect in the nest paragraph.
30. The following circunistances are. in Respondent's submission,
relevant as regards the attitude adopted other States in the respect
in question :
(a) It is 110tdisputed that the Charter imposes noobligation on Respond-
ent to enter into a trusteeship agreement. It is also common cause
that no express provision was made therein for the United Bations
or its organs to be substituted for the Leaguc organs in respect of
supervision of mandatory administration. On the contrary, it will
be recalled that proposaisregarding the trançfer of such functions
were, on two occasions, not proceedcd witti or rejected 6.
II, pl)54-60.
Ibid., pp.55-62.rlatpp. 57,59 and 59.
' Ibid.. pp.62and 72-95.
Vn eitherof thetwo respectsirientionein para. 28,supra.
6II, pl'40, 43 (para.35g). 47-50.131-132,134-135 and 146-'4; (paras. 49-50). HEJOISDER OF SOUTH AFRICA SI
(b) At the dissolutioti of the League, other Rlandatories also indicated
that in their view the mandate obligation of accountability would
no longer be capable of performance '.
(c) Over the next three years at least 24 inenibers of the United Nations
publicly associated themselves with this view, acknowledging in
particular, either expressly or by clear implication, that in the
absence of a trusteeship agreement the United Nations would have
no supervisory powers in respect ofa mandated territory *.
(d) For more than two years aiter the dissolution of the League, i.e.,
until near the end of 1948, not a single State voiced any contra-
diction to the views stated in (6) :ind (c), although during 1947
alone 41 States took part in debates on South \\'est Africa at tlie
United Nations 3.
(E) Some States contended that Respondent was under an oblig- t' J ion
to enter into a triisteeship agreement. 'rllis was, however, even
before the Court's ruling in 19j0, a liighly contentious issue ',and
the States alleging such an obligation did not base it on anyconsent
(save as embodied in the Charter)or representation on Respoiident's
art.
The abovc circumstances render it beyond doubt that Kespondent's
continued administration of the Territory was not understood as in-
volving any conseiit to, or recognition of, an obligation of accountability
towards the United Nations. This by itself, of course, shows the absence
of the second essential element of estoppel referred to above 5, viz., that
the attitude or representation in question must have brought about a
change in the relative positions of the parties. However, for present
purposes Respondent is more concerned to point out that the viewFs
expressed by othcr States also confim that in fact no attitude was
adopted or representation made by Respondent which could give rise
to the estoppel now under discussion. Had the circumstances been
different, the attitude of other States might possibly have provided a
setting in which an nct or attitude on Respondent's part, appnrently
neutral or amhiguous in itself, could assume special significancc. Thuç,
for instance, if Respondent had without express reservation continued
its adrnihistration of the Territory in the face of universal insistence that
such administration would be taken as consent to an obligation of
accountability to the United Nations, a serious question as to a possib!e
estoppel might have arisen. Such a situation does not, however, obtain
here, not only by reason of the above-mentioned explicit statements by
Respondent regarding the basis upon which its administration of the
Territory was continued, but also because there was no universal in-
sistence as postulated in the above example-on the coiitrary, the
-eneral consensus wns to the opp--ite effect.
31. For the reasons set out above, ICesyondent submits tliat no
inference can bc drawn from its "assertion" or "maintenance" of rights
1 II. pp.136-137.
l'idsummary. with names of the States concerned, inII,p. 141 (para. jib)
and for greater detail vidalso pp. 65-7and 138-140.
' Vide summary II.p.140 (para.jra) read with pp.65 (para.57a),70 (para.(m)
and r39.
Ibid., p. Gg,footnoteI
Videpara. 2C,supru.82 SOUTH IVEST AFRICA
or po\vers of administration that it has consented, or is to be precluded
from denying consent, to an obligation of accountabi1it)- tomards the
United Nations, either in the sense contended for by AppLicants in tlieir
Submissions 2, 7 and 8 l,or in the sense of an obligation to enter into a
trustceship agreement.
Therc then remain for consideratioii certain vieivs to the effect that,
evcn in the absence of consent on liespondent's part, real or by estoppel,
liespondent can have no right or title ta the Territory \vithout interna-
tional accountability. This matter is dealt with in tlie succeeding para-
gra ph'hç.
32. It will be recalled tliat soine States at the United Xations es-
presscd the viewthat whether or not I'Ceçpondentisunder a legal obligation
to enter into a trusteeship agreement, Respondent has no practical choice
in the rnatter ifit wisheç to inaintain rights of administration and pos-
session in respect of the Territorg. 'Tlieir argument was to the effect,
firstlythat the Mandate had lapsed, secolsdly,that independently of the
Mandate liespondent could have no right or title to administer tlie Ter-
ritory, escept, titirdlythat Respondent could and shoiild put it under,
triisteesliip. It will be quite evident that such a line of argument docs
not fa11within cither the perrnissibte or the actual scope of Applicants'
submissions in the present case. As r(:g:lrds permisçibility, the bouiids of
"the interpretation or the applicatiori of the provisions of tlie alandate" '
may not be exceeded. .4nd as regards Applicants' actual case, the first
step, and essential premise, of the aboVc line of argument is that the
Mandate hns lapsed, ïvhicfi is the direct opposite of Applicants' first
ancl basic sribmission. rt is therefore nianifest that this lineof argument,
and particularly the cantentious seconcl step therein, viz., that I2eçpond-
ent can Iiave no right or title to administer and possess the Territory
independently of mandate ortrusteeship, is iieither legally nor practically
rele~.ant to the present case.
33. By rcason of what is stated in tlie previous paragrapli, Respoild-
ent in the Coimter-Mernorial made but brief reference to the point
concernecl, and stated the obvious fact thnt it does not "fa11 to be coii-
siderecl for the purposes of the present c:ise" 4.
Applicaiits' reactioii iii the Reply is to say that Respondent has, in
so doing, been "curt" towards the Court 5; and the manner in which
the!. den1 with the matter wouId seem to siiggest that Respondent lias
aiso been evasive =.They proceed to state:
"Applicants respectfully submit that . . . there is no basis what-
ever, 0th than the 3Iandate itself, for the continued exerciçe by
Kespoiident of rights of administration, or of an- other right, title
or intereçt in or to the Territory 5."
Responderit, dile ernphatically rcjectiiig this submissian, fails to
see what bearing itcan have upon, or how it can fit into, Applicants'
case as prescnted to the Court in their forma1 submissions. If this sub-
mission were to be a forma1 one, in terms of which the Court is being
askcd to adjudge and declare, the Coilrt \voiild unquestionably have to
' Videpara. 28,SZ~~YLL.
* l'ide 11,Counter-Mernorial, BookII, Annex A.
Art. 7 ofthe Mandate for German South-!\'est Africa.
+ II,p. 174.
' IV, p.244. REJOISDER OF SOUTH AFRICA 63
decline jurisdiction to do so. And how the subinission can even indirectly
be of assistance in the decision of the case that actually is before the
Court, viz., the forma1submissions that the Ilandate exists and contains
an obligation of accountability, is unintelligible. The questions pertairi-
ing to the submissioris before the Court are wliolly differerlt frorn those
that ïvould have to be gone into in order to clecide whetlier, if the Man-
date does not esist, Respondent has a legally vnlid claim to title: and
ivhatever anstirer may be reacfied in the latter respect, whetfier positive
or negative, cannot rissist towards iinding the ansivers in regard to the
former.
34. In pointing out the above, Kespondent does iiot intend, and does
not conceive itself, to be either curt or disrespectful towards the Court,
or ex-asive of the ~nerits of the questions raiçcd by Applicants in the
above-quoted submission.
As far as the Court is concerned, hpplicaiits speak of a "curt dismissal
of questions to which the Court has attached solcmn and decisive
weight" l.They do 50 with reference to :Lqiroted passage in the 19jo
Opinion, in wtiich the Court said:
"The authority which the Union Governmcnt esercises over the
Territory is bascd on the Mandate. If the Mandate lapsed, as the
Union Goverriment contends, the latter's authority tvould equally
have lapsed. To retain the rights derived from the Mandate and to
deny tlie obligations tliereunder could not bc justified 2."
Kespondent has nevcr understood this passage to signify more than that
ifthe Mandate has lapsed, liespondent cannot rely ojz the llialtdate for
authority to administer the Territory while clenying the mandate obli-
gations. Thus understood, the proposition stated by the Court has never
been contested Iiy licspondent, least of al1in the portion of the Counter-
JZemorial under consideration. Respondent does not understand the
passage to signify that the Court gave consideration to the question
wliether, if the Mandate had lapsed, Respondent could have any valid
claim to a title to administer and possess Soutli West Airica, and that it
came to the conclusion tliat tiiere could be no suc11valid claim. If this
were what the Court h;id inmind, one would have espected some reason-
ing in support of siiciin conclusion: and it would be very difficult to
understand what "solemn and decisive weight" tlie Court coiiId have
attached to such a conclusion in support of the findings actually arrived
at and recorded in the dispositive of its Opinion.
35, As far as suggested evasion of the merits of the question is con-
cerned, Respondent has, on the contrary, never understood how anyone
can, without even any reference to relevant facts, siinimarily dismiss the
possibility ofa vafid daim to title on its part on tlic basis that the Bian-
date has lapsed. Respondent conquered the Territory of South l'est
tlfrica by force of arms during the First \iTorld War, as early as July
1915 a,nd thercupon kept it in occupation, and esercised powers of ad-
ministration and possession in respect thereof, for several years before
even any suggestion was node that the Territory was to be placed under
IV,p. 24-1.
ItiternalionStuirrO/Soutlt West AfricAdvismy Opinio~i.1.C.J. Report1950.
p. 12sat p. 133 qiioted iIV.p. 243.s4 SOUTH WEST AFRIC.4
Mandate l.At the Peace Conference Respondent eventually rigreed, by
way of a compromise betiveen conflicting vie~vsand jnterests, to accept
a C hlaridate in respect of the Territory in lieuof Respondent's daim to an
unqualified title of annexation or incorporation 2.One of the elements of
the compromise \vas indeed that Respondent "would have to be appoin-
ted the Mandatory" 3. Respondent has ever since remained in peacefiil
and undisturbed possession of the Territory, and has likeuiise uninter-
ruptedly governed and administered the Territorv, also after dissolution
of the League in 1946, which is the time at which it is for prese~it pur-
poses to be assumed that the alandate lapsed. In the course of this ad-
ministration of the Territory "as an integral portion of. .. South Africa"
-as the Mandate envisaged and prescribed-there has in fact resulted
a considerable measure of administrative integration of the Territory into
IZespondent's system of government, as meil as of dependency of the
Territory's fortunes, economic and otherwise, upon Kespondeiit's re-
sources.
Having regard, ititealia, to these facts, and given further the postu-
Iates that the Mandate lapsed on dissolution of the League-i.e., not
through fault on Respondent's part but as a result of sornething done by
the general consent of the interested parties-and that no obligation was
imposed upon Respondent to place the Territory under trusteeçhip, it
can hardly be said to be a foregone conclusion that Respondent can
have no valid claim to a title to continue to administer and possess the
Territory. In view of the fact that the Court is not called upon, and lias
no jurisdiction, to decide such a question in these proceedings, Kespond-
ent refrains from submitting a detailed exposition of fact and a syste-
matic legal argument relative thereto; but by the same token Respond-
ent's action in doing so involves neither disrespect for the Court nor
any desire to shirk or evade questions as to its title.
III. CONCLUSION
36. For the reasons aforestated, Respondent's contentions are,firstly,
that on balance supervision by organs of the League was intended by
the authors of the Mandate to be of so essential a nature in the inandate
institution, that the institution could not exist without it; secolrdly,that
this situation, coupled with the non-provision for substitution ofsupcr-
visory organs, led to a total lapse of the mandate institution oii dissolu-
tion of the League, and not, as contended by Applicants, to a keeping
alive of the Mandate and supervision through the "assertion" or "main-
tenance" of rights of administration and possession by Respondent; and
thivdl iny,th^alternative to the foregoing, that if the Mandate stiil esists,
it can only be without an obligation of accountability to a supervisory
organ.
37. In the rest of tliis Chapter, Respondent will deal with the question
whether the comprornissory clause in Article 7 of the Mandate can have
any effect on the conclusion reachcd herein (i.e., particularly the second
aspect thereof as stated above).
' II,pp. 10-11.
Ibid..pp.11-14,
Ibid. p.12. REJOIXDER OF SOUTH AFRICA
B. The CompromissoryClausein Article 7 of the Mandate
I. Before dealing with Applicants' arguments ~lating to the compro-
~nissory clause in Article 7 of the Mandate, it 1s necessary to repeat
brieily the contest in which this issue again arises for consideration in
thc present stage of the proceedings. As indicatetl above ', Respondent
submits that, upon the dissolution of the League, the provisions regarding
supervision of mandatory administration by organs of the League
lapscd. Respondent's further submission, viz., that this lapse rendered
the Mandate incapable of further existence to any exfent whatever ?,
necessitates an examination of contentions or views tothe effect that the
compromissory clause filled the void caused by the lapse of Article 6,
ancl thus kept the Mandate alive 3.In this connection liespondent posed
the follo\ring questions in tlie Counter-alemarial, each of \\,hich \vould
have to be answered iii the affirmative for a finding that such v-ie~vsor
contentions were correct :
"(a) iVhether the clause was intended to provide for any super-
visory functions in respect of Mandates, and, if so,
(B) whether such çupervisory functions were of sufficient 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;
(cj 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
mernbership in the League, mentioned in the clause as a
requisite for invoking it 3."
Upon any one of these questions being answered in the negative, the
compromissory clause coulcl liave had no effect in prcventing the lapse
of tlic Mandate. Respondent submitted in a fiilly rcasoned argument
that not only one, but al1the qiiestions are to be answered in the nega-
tive ".
In tlieir Reply, Applicants approach this issue as follows: as regards
question (c) the. rely on the igjo Advisory Opinion and the 1962 Judg-
ment on the Prcliminary Objections without presenting any further
argument J, and, apparently. without appreciating the relevance of this
question to the issue regarding the lapse of the Mandate 6; as regards
q~iestioii(a) tliey rely on tlicsaid Opinion andthe said Jitdgment, and in
1 VideChap. IIIand Chap. IV A, para. I,supra.
2 Vide Chap.IV A, setpua.
3 11,1).171.
' Ibili.. Counter-JIernorial, Book II, Chaps.AVand \' 13.
Vide IV, p.546
Fide para. 2.infra.86 SOUTH WEST AFRICA
addition yrejent sonie argument l; and, finally, regarding question (b)
no argument in reply is presented at al1 ?.The rest of this Chapter rviI.ill
consequently be devoted to the following topics, viz., firstly, the scope
and purpose of the compromissorp clause, and seco~wlly,the effect of the
1950 Advisory Opinion and the 1962 Judgrnent.
The cliscussion under the first head will coiicern maiiily questiori (a)
above, although, due to the fo~mtaken hy one of -4pplicants' argurner-its,
there will nlço be some reference to cluestion (c) j. Under the second
liead the discussion will relate to l-iothquestions ((1)aiicl (c).
II. THE SCOPE AN13 PURPOSE OF THE COS~PROMISS OL AYUSE
7. Applicânts Say:
"llespondent's contention with respect to the assertedly Iimited
scoye of the compromissory clause no doubt is essential to its argu-
ment that tlie lapse of Article 6 of the Alandate collapsed the IIan-
date as a mhole. Unless Respondent çuccecds in showing tliat the
coml-~romissoryclause is so inconsequeiitial in purpose and conse-
quence as, in effect, to be den~inirnis in the sclieme of the Mandate,
Respondent obviously cannot carry its contention tliat the Alandate
as a whole has lapsed by reason of the asserted lapse of Article6 4.'1
Applicants thus single out only one of Respondent's contentions (i.c;;
that relating to question (a) above) 5and state tlint it is "essential
tu Kespondent's argument. This statement is, of course, incorrect. As
tlemonstrated ahove, Keçpondent's contentions.with regard to the com-
promissory clause are not limited to the scope and purpose of the clause,
but comprise three braad subrnissions, each of mhich would, if accepted,
be decisivc 6.Probably because of a mistaken vicw regarding the import-
ance of the issue concerning the scope and purpose of the compromis-
sory clause (as appears from the above-quoted passage). .4pylicantç Iiave
singled it out from the other issues referred to above for presenting
argument on the merits thereof in their Reply. Iii tlie succeeding para-
graphs, Rcspondent will deal with this issue.
3. Rcspondent's contention in the respect uiider .consideration ivas
summed up as folloit7sin the Counter-Mernorial:
"... it issubinitted that the Permanent Court diclnot possess any
function of jiidicial supervision in respect of Mandates, sincc its
' Vide IV, pp. 540-546Tn limiting their argument to this oneaspectApplicants
apparently labour iinder the mistaken impression thnt this representsthe oiily
question relevant to the issue regarding the ofpthe Mandate-vide para.2,in/rn.
This issuewas dealt ivith in II, Book II, p171-173 of the Counter-;\Iemorial
where Rcspondent submitted that.even accepting the viewuf the majority judges
inthe 1962 Judgment regarding the scope and purpose of thcompromissory clause,
the clause could not have ken a satisfactory substitute for the provisions ofGArticle
of theAlaiidnte.
Vide Iiara. 5, i~fra.
' IV, p. 540.
Vide para. i,supro.
Vide para. 1,supra. Respondent is neverttieless grateful for the correctofss
Applicants' statement thnt Rcspondent's argument onthe lapscofthe Mandate \vas
based on the lapse of Articl6,üncl not vice versaas is put fortli elsewheinthe
Reply-vide Chap. III. para.2.supvrc. REJOISDER OP SOUTH AFRICA $7
cornpetence was limited to deciding disputes relating to the rights
or legal interests of AIembers of the League in the Alandate, and
3Iembers did not individually possess any right or legal interest in
the observance by the Mandatory of the conditions iinposed in the
'ilandate for the bencfit of the inhabitants of the territory escept in
cases kvhere the breach of these obligatioiis affected the material
interests of individual Lcaguc Alenibers, either directly or through
their nationals l".
Applicants submit that tl-iis contentioii renders "the compromissory
clause meaningless" 2.They then continue :
"In an effort to avoid so patently absurd a result, Kespondent
suggests that there are, in the hlandatc, provisions wlzich do rzol
den1with the intevests of the ilahabifants,and that the compromissory
clause has meaning, because it may be deemed applicable to this
type of provision 2." (Italics added.)
It isdenied that any staternent to this effect can be found in any pleading
filed by Respondent.
In fact, Respondent said:
"It is further evident that certain of the conditioiis . . . directed
towards indigenous interestç, could in udditior~serve the interestsof
League Members (cg., the restrictions upon traffic in ams and arn-
munition and upon fortification and armarnent) 3" (italics added),
aiid "[elach of the maiidate instruments contained provisions apparently
ititended specifically for tlic benefit of member States and tlieir
iiatioiials"4. To this there was ndded in a iootnote: ",41thoughin addi-
tiofr in the interestsof the iitltahiia~~nf dhe mandated territories." The
test continued :
"These were, for csamplc ... provisions in the C Mandates rela-
tive to the freedom of entry, niovenient and residence of niission-
aries who were nationals of League Nernbers. Then there were also
contained in the Mandate instrunients other provisio?zs,prinzarily
i?ttendedfor tlte beltefiofthe inhabitants, the teolz-observance01 whtclt
corrld,however, afect also fhemulerial interests of ixdividrial Leagirs
Mentbers. Examples would be the provisions with regard to the slave
trade, and provisions witli regard to traffic in liquor which, if vioiated
by a hlandatory, could possibly affect neighbouring or even other
States which, being hlembers of the League, rvould then have n
legal right to object 4." (Italics added.)
4. Applicants' incorrect rcnderiiig of the above contention as being
that "there are, in the Mandate, provisions which do not deal luit he
interests of tlie inhabitants" 5,enables them to reply plausibly as follows:
"First, there are rio organic provisions in thc Mandate that do not
deal i7tsome nza~znerwith the interests of the inhabitants. The pro-
hibition against the building of military bases and fortifications in
' 11,p. 193.
IV, p. 541.
3 II,p. 105.
' Ibid. ,.177.
Italics added.68 SOUTH WEST AFRlCA
Article 4, is, inter alia, incidental to the general prohibition against
the improper use of the inhabitants for military purposes .. .
Article 5, assuring entry and travel to foreign missionaries, rnani-
festly is incidental to the Article's general-guarantee of freedom of
conscience and worship for the natives l." (Italics added.)
It is interesting to note how Applicants, in answering an argument not
used by Respondent, reach basically the same conclusion as that actually
submitted by Reçpondent, and even quote the same examples.
The extent to which various provisions may have been intended to
secure the respective interests of League Members and of the inhabi-
tants of mandated territories, isa matter of inference, and it is susceptibIe
of speculation. So, for example, Quincy Wright reflects that-
"[tlhough [provisions against recruiting of natives] assure the na-
tivesagainst military exploitation in the interest of the mandatory,
doubtlessthe in.terestof 1hirdstatesin the disarmament of themandated
areas was an even more im@ortantreasopt/or .their inclusion in the
Covenant and the mandates 2".(Italics added.)
if'hether Wright was right or wrong in this view, does not affect Re-
syondent's argument, The important point is that there were a substan-
tial nuinber of provisions in fact serving the interests of both I.eague
blembers and the inhabitants.
5. After advancing the argument quoted iii the preceding paragraph,
Applicants state :
"Secondly, asthe Court has already held, the phrase 'any dispute
whatever' clearly refers to disputes concerning interpretation or
application of any and al1 provisions of the Mandate.
Applicants submit that the scope of the compromissory clause,
thus determined by the Court, makes clear that itis theinternational
comrnunity of States which has a legal resfionsibility for the rotectio?e
of inhabitants of the Tcnilory. Under the rheme of the Randate,
certain States rnernbers of the community, such as Applicants herein,
accepted the rights and duties of membership in the 'organized body',
representing the international cammunity, by becoming members of
such organized body-formerly the League of Nations, now the
United Nations.
Among the rights and duties thus acce ted by Applicants, is that
of submitting for adjudication by this Efonourable Court a dispute
concerning Respondent's conduct of its obligations toward the in-
habitants of the Territory 3." (Italics added and footnotes omitted.)
The first paragraph of the above-quoted passage, setting out the find-
ing of the Court iii1962 is correct 4. The inference which Applicants
seek to draw from it, is, however, in Kespondent's submission, fallacious,
and, indeed, contrary to express findings of the Court. Applicants'
argument may be rcndered as follows:
IV. PP. 541-542.
Wright, Q.. ~Tfandateswnder theLengue ofNatio?$s (1930). p.472 andvideWall.
H. D., ~1iLinrdra,seeladewciesatad T~z,siees/za'p(194pp. 68-69.
IV,P. 542,
For Respondent's submissionsregarding the effecto begiven to tliJudgment
and Opinions; uidc para.14, infra. REJOISDER OP SOUTH -4FRIC.A Sg
(a) "Any dispute whatever" refers to disputes concerning any and
al1 provisions of the Mandate;
(6) therefore States which are members of the " 'organized body'
representing the international community" (now the United
Nations) have locus statzdi to institute contentious proceedings
before this Court.
This is, however, a complete non seqzcitur.The nature of the dispute
cognizable by the Court (jurisdiction ratione materiae) does not per se
determine wliich States are entitled to institute proceedingç (jurisdiction
ratione personae). In fact the question of cornpetence to invokc the
compromissory clause (i.e., jurisdiction in the latter respect) was esam-
ined .by the Court in the 1962 proceedings in the light of the words
". ..if any dispute whatever should arise between the alandatory and
another Afember of the Leagzreof Nafions . . ."l.(Italics added.)
Of the majority judges xvho held that there still existed States com-
petent to invoke this clause, not one decided in favour of Applicants'
submission (which had also been propounded at that stage) that mem-
bership of the United Nations had, after the dissolution of the League,
replaced membership of the League as the qualifying factor in regard to
such locus standi 2.AI1 these judges came to the conclusion that locus
standi remained vested in States which were Members of the League of
Nations at the date of its dissolution 3.Kespondent does not appreciate
on what basis Applica~its now seek to deduce support for n proposition
apparently rejected bj. the Court, by drawing inferences from passages
in the Judgment dealirig with entircl different issues.If Applicants wish
to subrnit that the Judgment and separate opinions were wrongly de-
cided on the issue relating to the present effect of the words "another
Member of the Leagut: of Xations", or that the findings thereon were in-
consistent with the Cuurt's view regarding the nature of disputes cog-
nizable by the Court, il issurely their duty to the Court to do so in an
open manner, and to present argument in support of their submissions.
6. At various places in the Reply, Applicants use arguments to the
effect that Respondent's construction of the compromissory clause "seeks
to transmute the concept of 'sacred trust' into a moral principle, rather
than one of legal effectiveness" I.These arguments seem to be based on a
suggestion that absence of compulsory jurisdiction renders an obligation
in internationallaw merely a moral one,or, converseiy, that the existence
of compulsory jurisdiction is an essential prerequisite to the creatioii of
legal obligations in international law. This proposition, however, need
only be stated to be refuted. Compromissory clauses constitute the escep-
tion rather than the rule in international treaties and conventions. and
international law conccdes legal validity and effect to treaties irrespective
of wvhether they contairi such clauses. In the mandates, moreover, the
absence of compulsory jurisdiction to enforce the interests of the inha-
bitants of mandated territories would a jortiorinot have affected the legal
nature of the Mandatories' obligations, inasmuch as international organs,
1 Art. 7of the Mandate foi.German South-West Africa.
Vide II, pp.122.236.
Vide analysisin II, pp214-256.
IV, pp. 542 and 544.545. Videalso Chap. II. para. 13,sttpva and Part III,
sec.C, paras.5-7,inf~a.90 SOUTH WEST AFR1C:I
altliough not of a judicial nature, were specifically charged ivith the func-
tion of ensuring cornpliance mith such obligations.
7. Applicants âiso seek to derive support for their coi~tentions froni
the history of the drafting of the mandates l.Certain basic misconcep-
tions, however, underlie the lvhole of their argument in this regard.
Thus they submit that in respect of the B and C Mandates there were
two types of provisions namely:
(a) those which "dealt with the duties of the Mandatory with respect
to the well-being of the inhabitants" and
(6) those ivhich "gave to nationals of Mernbers of the League of Nations
certain rights, including particularly so-called 'open door' rights" 2.
Of these provisions, according to Applicants, both types were found in
B Mandates, but only type (a) in C Mandates 2.
The fallacy in Applicants' argument is threefold. Firstly, tlie riglits
for which provision was made in the mandates concerned, other than in
respect of the well-being of tlie inhabitants, were not confined to lzalionals
of Mernbers of the League of Nations, but extended in several respects to
League Members themselves. This will be further demonstrated below.
Secondly, the method of classification is wrong in another respect
also. Each and every provisioii of the B and C Mandates cannot be
classified as being concerned either exclusively with tlie well-being of
inhabitants or esclusively with rights or interests on the part of League
Members and their nationals. As has been show11 3,a considerable numher
of provisions have the dual aspect of being concerned with, or being
capable of affecting, both those rnatters.
Although Applicants, in making the above classification, disregard
this factor, they do not appear to be irnaware thereof when they say in
cautious terms that ". . . there are no organic provisions in the Mandate
that do not deal in some Istanlzewith the interests of the inhabitants" 4.
(Italics added.) And elsewhere in the Reply 5, they themselves quote,
apparently with approval, the passage from Quincy Wright cited above,
relating to the military clause iri the mandates 6.
The provisions with such a dual aspect were iound in both B and C
Mandates, and included those relating to military training, fortifications,
traffic in arms and ammunition, supply of intoxicating Iiquor, the slave
trade, etc. "The implications of these provisions demonstrate also that
Applicants' argument is fallacious in the first respect mentioned above:
clearIy the provisions were intended, inter alia, to confer rights on Mem-
bers of the League themselves, in their own interest, as distinct from
inhabitants' well-being and individual interests of nationals.
The third fallacy in Applicants' contention really Aotvsfrom the first
two. It consists of the suggestion that al1 the provisions of C Mandates
were concerned with the inhabitants' bvell-beingonly. In fact there were
a number with the dual aspect: in addition to these that have just been
mentioned, there were also the proviçions regarding entry, travel and
l Vide IV,pp. 542-544.
* Ibid.p,.542.
Vide paras.3 and 4,sicpro.
' IV, p.541.
5 Ibid. ,. 565.
Vide para. 4,supra. REJOlNDER Ofi SOUTH AFRICA
9 I
residence of missionaries, which expressly benefited iiationals of League
Members, apart from also contemplating inhabitants' well-being.
8. Applicants proceed to Say:
"The compromissory clause, whicli was first introduced by the
United States in connection with the drafting of the 'B' Mandates,
made clear the legal distinction between the two types of provi-
sions l."
They then refer to the two paragraphs in the United States draft
which read as follows:
"If any dispute should arise between the Aiembers of the League
of Nations regarding the interpretation or applicatioii of the present
Convention and the dispute cannot be settled by negotiation, it will
be referred to the Permanent Court of Justice. . .
The subjects or citizens of the States blernbers of the League of
Nations may also refer claims relating to breaches of their rights
conferred upon them by Articles 5, 6, 7, 7a and 7Eiof the Mandate
to the Court for decision 2."
Applicants' comment on this draft is:
"Hence, the legal interest of a Member of the League concerning
the manner in which the Mandatory was discharging its obligations
under the Mandate townrd the inhabitants was distinguished frorn
the legal interest of a national of a Member of the League with
respect to the rights granted to him 3." (Italics added.)
But the italicized words do not give a correct rendering of any concept
found expressiy or by implication in the terms of thedraft compromIssory
clause. The clause distinguished between possible proceedings by League
~Ifembersand by lzationals of such Members: in this çense it may be said
to have distinguished between their interests also. Rowever, the further
element which Applicants seek to infer from this distinction, viz., that
League Members' justiciable interests would-apparently by a process
of elimination-have to relate to ". . . the manner in which the Manda-
tory was discharging its obligations under the Mandate toward the in-
habitants", is derived not from the draft clause itself but from a gloss
put by Applicants on the terrns the~eof. This gloss appears to be based
on Applicants' wrong method of classification referred to above 4,of the
provisions of B and C Mandates, and particularly the first aspect thereof.
Applicants' reasoning is presumably to the effect that, since the second
paragraph of the draft claiise was intended to serve the intefests of
nationals of hlember States, there exiçted no other class of State ~nterest
to be protected by the first paragraph, Save a suggested interest in the
performance by the Mandatory of its obligations towards the inhabitants
of the territory.This argument falls away if it isappreciated that in pur-
suance of the mandates' provisions Members of the League possessed,
as States, interests of their own quite distinct from the individual in-
terests of their nationals-as has been demonstrated above 4.
' IV, p. 542
2 Translation obtained from joint dissenting opinion of Judges Spender and
Fitzmaurice: South West Africa, Preliminary ObjeciionsJudginent,I.C ..Reports
1962, p.319 atp. 555.
IV,p. 543.
+ Vide para.7. supra.g2 SOUTH WEST AFRICA
Provision for such State interests was aiready made in the United
Statesdraft B Mandate. This draft contained, irtteralia, clauses requiring
equal opportunities in commerce and navigation for member States ',
a clause in the nature of a most-favoured-nation provision to operate
in favour of niember States and their subjects 2,an undertaking on the
part of the Mandatory Power to CO-operatein the esecution of common
meaçures adopted by the League of Nations with a view to preventing
and cornbating plant and animal diseases 3,as well as provisions, similar
to those eventually incorporated in the mandate instriiments, relating
to military training, fortifications, traffic in arms and ammunition, sup-
ply of intoxicating liquor, the slave trade, etc. ' It is clear, therefore,
that the United States draft B Mandate contemplated a substantial
number of matters in respect of wtiich Members of the League would as
Statesobtaininterestsdistinct fromthose of their nationiils. The existence
of such State interests provides an obvious rcason for the manner in
which the first paragraph of the draft compromissory clause was formu-
lated.
g. This fallacious assurnption regarding the purpose intended to be
served by the first paragraph of the United States draft cornpromissory
clause, invalidates the whole argument wliich Applicants seek to base
on the history of the Mandate. Cansequently, although their account of
historical events is substantially correct, their inferences are, it is sub-
mitted, consistently wrong. Thus they point to the approval, on the same
days, of a draft B Mandate containing a cornpromissory clause consisting
of both the above paragraphs (although in an amended forrn) and a
draft C Mandate, containing a compromissory clause consisting of only
the first paragraph 6.The only reasonable inferences which can be drawn
from these facts would appear to be either-
(a) that the legal interests of rzationals of Mernbers (as distinct from
the Iegal interest of Men-ihrs themçelves) were not consjdered of
sufficient significance inC Mandates to warrant spccial treatment;
or perhaps only,
(bj that the draughtsman of the C Mandate had realized that the
second paragraph was redundant, whereas this was appreciated
or accepted with respect to B Mandates only at a later stage 7.
Except on the fallacious basis referred to above, there is no warrant
for Applicants' conclusion that in the draft C hlandate-
". ..the Commission inserted merely the.par;rgraph.deriling with the
interest of a State Alember of the League concerningthe manfier in
which the ildandatory discharged its obligations towardthe irchabitants
of theTerritory 8". (Italics added and footnote omitted.)
II,p. 16.
Ibid.. p17.
' Con/drenccde fa Paix1919-1920 R,ecueil deActes de lConfdrsnce, Partie1'1,
Trailks avec les Puissances E?znemimiseen vigueur,A. Prdparalion delamise en
vigueur.I~~Fasc. p. 341.
+ Ibid., pp. 340-341.
' In particular. individuals werno longercntitled tmove the Court-vide II.
pp 17-18.
IV*PP- 543-544
Vide II, p. 18.
a IV,p. 544. REJOINDER OF SOUTH AFRIC.+ 93
Applicants seek to strengthen this conclusion by refcrence to the
deliberations of the hlilncr Commission during which statements were
made to the effect that "the stipulations of the C Mandates [appiy] only
to the interests of the natives"l.Taken literally, such statements would
of course be absurd-Applicants themselves do not appcar to contest
that sorne of the provisions of C Mandates served not only the interests
of the inhabitants, but also the interests of other Rlembers of the Leag2.
However, when reading the said statements in their context, the seemin
absurdity is explained. Japan was pressing for the inclusion in the f!
Mandates of Open-Uoor provisions similar to those contained in the R
Mandates. Other Members of the Commission, and particularly the
Chairman (Lord Rlilner) and Lord Robert Cecil, representing the British
Empire, opposed this dernand. The groundç of their opposition were that
the institution ofC Mandates represented a compromise, and that agree-
ment had been reached, inter dia, on the principle that Open-Door
provisions should not be incorporated in thern 3. .As the Chairman
said :
"... the fiindamental reason for the difference between the B and
C Mandates is a compromise actually accepted by the Powers;
furthermore ... there must be a differencebetween these two types
of Mandates considering that agreement was reached only on con-
dition that this distinctiobe recognised 4".(Translation.)
This distinction was expressed in Article22 of the Covenant as follows:
Whereas paragraph 5,dealing with B Mandates, provided for two types
of conditions, viz., those jmposed mainly for the protection of the inhabi-
tants, and others which would "secure equal opportunities for the trade
and commerce of other Members of the League", paragraph 6, dealing
with C Mandates, required the imposition only of "the safeguardç above
mentioned in the interests of the indigenous population".
The statements on which Applicants have seized in plirported support
of their contention, merely pointed out, as an answer to the Japanese
claim for Open-Door privileges in regard to C Mandates, that thisdiffer-
ence existed betwcen paragraphs 5 and 6 of Article 12. Thus the full
context of Lord Cecil's statement, to which Applicants reier L,was as
follows:
"Lord Robert Cecil (British Empire) draws the attention of the
Cornmittee to the fact thrit Article22 of the Covenant makes a
clear distinction between tlie two types of Mandate, the stipulations
of the C Mandates applying only to the interests of the Natives 5."
(Translation.)
And the further passage quoted by Applicants is an evtract from a
statement by Lord Milner during tlie sarne discussion and in esactly the
same contest 6.
IV,p.544.
Videpara. 7, sztpra.
Conférencde laPaix 1919-r920op. cilpp. 335-337 and 353. '
+ Ibid.. p. 353.
' Ibid., p. 336.
"bbid..pp. 335-336.94 SOUTH WEST AFRICA
Quite clearly therefore, the hiilner Commission was not concerned to
do any more than to determine the issue regarding Open-Door privileges
in C Mandates-in particular, they did not devote any attention to the
question whether and to what estent "the safeguards . . . in the interests
of the intligenous population" also granted legal interests to States
Iilembers of the League of Nations. This appears clearly also from certain
remarks follo\ving on the above-quoted statement by Lord Robert Cecil.
The following is recorded :
"Viscount Chinda [Japan] says that the clause concerning armed
forces and fortifications cannot be considered as drawn up only in
the interests of the Natives and that it iç the same with the clause
concerningcommerce. With the exception of the fact that the terri-
tories towhich tlieC Mandateaill beapplicable,willbecomean integral
part of the hlandatory State, he considers that no clifference js to
be made between the E and C Mandates 1". (Translation.)
The Chnirman's reaction is significant. He did not dispute that the
military clause served interests other than those of the Natives, but is
recorded as saying:
".. .that one cannot go back on the concessions which the Domiii-
ions believe to have been made in their favour. Conseqiiently,
[I am] opposed to an? restriction, except those laid down in the
Covenant, being imposed on the Alandatory Power of the C type l".
Indeed, aiter the implications of the military clause regarding Members'
interests had pointedly bcen brought tothe attention of the Commission,
plus the fact that Article 5 of the Blandate espressil imposes on the
alandatory obligations to "al1 missionaries, nationals of any State Mem-
ber of the League of Nations", no >lember of the Commission could have
considered that the C Mandates literally provided for no interests other
than those of the inhabitants.
IO. Applicants in the Reply advert only in paçsing to the most im-
probable aspect of their argument atpresent under consideration, itamely
that provision for a form of "judicial supervision", should have been
introduced intothe mandate instruments without discussion or comment
by any person, and despite absence of provision therefor in the Covenant.
After referring to the minorities treaties, and to the provisions in the
Covenant relating to the pacific settlement of disputes likely to lead to a
"rupture" between Members of the League 2,Applicants state:
"Such s gcneral policy of reliance upon judicial process may es-
plain the absence of any indication in the legislative history of the
;Mandates System that aiiy of the parties concerned questioned the
i~iclusionof the compromissory clause ? '"
In this regard Rcspondent refers to what was said in the Counter-
hlemorial relative to the wide differences, for purposes under discussion,
between the minorities treaties and the Mandate 3.There also appears to
be hardly any similarity at al1 between the provisions in the Covenant
relating to pacific settlement of disputes and the compromissor~~clause
' IV,p.336.
Ibid.p. 546
II, p187. REJOISDER OF SOUTH AFRIC.4 95
as interprcted by Applicants, i.e., as proi~iding for a system of "judicial
supervision" iiirespect of mandates. It is consequently difficult to accept
that the two sets of provisions relating respcctively to ~iiinorities, and to
tlie pacific settlemcnt of disputes, show "sucli a'general policy of reliance
upon judicial process" that everybody concerned would have rcgarded
the iiitroductioii of "judicial supervision" of mandates as something not
calling for anif comment.
II. In the Reply, Applicants also refer several timeç to arguments
assertedly used by Respondent "[iln order to avoid the clear and natural
meaning of tlie text of the compromissory clnuse" l.In fact of course,
Respondent argued that-
". . .the word 'dispute' in the context of the compromissory clause
was intended to convey ... the generallp accepted legal meaning,
namely a disagreement or conflict between the Mandatory and an-
other Atember of the Leagme concerning the legal rights or legal
interests of the latter in the provisions of the Mandate 2". (Foot-
note omitted.)
hpplicants do not contest this interpretation, aiid indeed expend some
ingenuity and imagination in an attenipt to prove the existence of a-
". .. legal interest of a Mernber of the League concerning the manner
in which the Alandatory was discharging its obligations under the
Mandate toward the inhabitanis. ..
ivhich dearly indicateç that they riccept Respondent'ç interpretation.
The questioii for determination then is-
". . .what rights or Iegal interests vested in the Jfembers 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
negotiatioii. to invocation of tlie compulsory jurisdiction of the
Court 4".
The ailsiver to this question cannot be found iii the terms of the com-
promissory clause, however clear they ma)? be. Thus in referring to a
jurisdictional clause almost identical to the present one, Sir Pcrcy
Spender said :
"Such a clause would normally refer ta disputes which relate ta
rights and obligations between the parties wliich exist and are to
be foiind outside the terms of the clnztseitself; disputes in which a
State claims to be aggrieved by the infraction, on the part of an-
other State, of an esisting right or iriterest othenvise posseçsed by it.
Such a clause, inshort, norrnally cloes not confer any additional
right or interest upon a State other than a right to have recourse to
the tribunal once the conditioiis imposed by the clause are complied
with. A dispute witliin the meaniiig of sucli a clause normally would
relate to a legal right or interest in theState clniming to be aggrieved,
which resides or is to be found elseivlicre than in such a clause itself.
It would iiideed he unusual to find in a jurisdictional clause a sub-
stantive right which itself could be made the subject of a dispute 5."
IV,p. 545.
II.p. 176 (para.4).
' IV.p. 543.
' 11,pp, 176-177.
j ~VortlievCntneroons Jitdgmcnt,I.C.J. Hefiorls1963. p. 15 atp. S3.96 SOUTH WEST AFRICA
Jn the same case, Sir Gcrald Fitzmaurice referred to-
". . . the universally accepted principle that, ivhatever the apparent
generality of its Iariguage ('any dispute whatever' relating to 'the
provisions' of the Agreement), a purely jurisdictional clause .. .
cannot confer sitbstantive rights l".
The learned Judge then continued:
"The substantive rights it refers to must be sought elsewhere,
either in the same instrument or in another one. All a jurisdictional
clause can do, is to enable any such rights, whatever the? may be
(and if they idependently exist), to be asserted by recourae to the
tnbunal provided for-this provision being the real purpose of a
jurisdictional clause, and al1it normally does '."
The rjghts orlegai interests which vested in the hlembers of the League
individually so as to have been capable of giving rise to a "dispute",
must therefore be ascertriined by an examination of the mandate provi-
sions olher than the comfiromisso~yclause. It is accordingly not clear in
wliat manner Applicants suggest "the clear and natural meaning of the
text" (of the comprornissory clause) 2 or "the clear text of tlie clause"
asçists in resolving this question.
12. Four of the points made by Respondent regarding the nature of
rights or legal interests wliich were vested in Members of the League
individually, are singled out for reply by Applicants 2. Respondent does
not propose repeating the arguments advanced in this regard in the
Counter-ùlemorial 3. Two of Applicants' statements, however, cal1 for
comment :
(a) Applicants say that Respondent advanced the theçis ". . . that
Respondent's obligations toward the inhabitants are political or
technical, rather than legal obligations" 2.
As has already been shown 4,this statement is incorrect.
(ti) Applicants refer to an argument used by Respondent to the effect
that-
". . . if its obligations toward the inhabitants were covered by the
clause, the Permanent Court would have been in a position to over-
rule decisions of the Council approving the manner in which the
Naridatory performed its obligations; the draiters could not have
intendcd this result 2". (Footnoteomitted.)
Applicants' comment on this argument is as follows:
"This also begs the issue. It assumes that the obligations of the
Mandatory were not legal in nature, hencc that they iifere for the
Council to decide rather thari for the Court
Respondent does not understand this line of reasoning.
130Applicants suggest that if the "obligations of tlie Mandator!. were
. . . lepl in nature" the Council could have had no power to take decisions
regarding alleged violations of the Ilandate? If so. their sriggestion is
clearly untenable, and indeed in conflict ivith a contention advanced in
' ~VorthernCameroo,rs, judgiiient.I.C.]. Reports 1963, p.I 5.
IV. p. 545.
III,PP.177-193-
' Vide Chap. II,paras. 11-13,supra.
' IVi pp. 249-254. REJOINDER OF SOUTH AFRICA 97
another part of the Reply ',wliere Applicants submit tliat the Permanent
Afandates Cornmission-
". .. developed and interpreted Iegal principles, based upon the
Mandate instrument and the Coveriant, and applied such legal prin-
ciples to specific situations2".
Or do Applicants suggest tliat, if there was no jurisdiction on the part
of a Court to overrule the Council's decisions in this respect, then the
"obligations of the Mandator." couid not be "legal in nature"? Again
the suggestion would be untenable, as has been seen 3.
13. For the reasons set out above, it is submitted that Applicants'
arguments regarding the scope and purposc of the comprornissor>rclause
sliould bc rejected. Further support for Respondent's contentions in this
regard is found in some of the opinions in the Northern Cumeroons case 4.
The Trusteeship Agreement in that case contained a compromissory
clause which. as has been noted 5, was almost identical with the one at
present under consideration. Although the majority of the Court found
it unnecessary to consider the scope of the clause h, some of tlie separate
concurring opinions interpreted it in the same way as contended for by
Respondent in the preseiit case. See, in particular, the opinions of Sir
Percy Spender 7, Sir Gerald Fitzmaurice %nd Judge Morelli '+.
III. THE EFFEC TF THE 1950 ADVISORY OPINOX AXD THE 1562
JUDGMEST O?; THE PRELI~IINAR OYBJECTIOSS
14. In the Reply, Applicants place considerable reliance on the
Advisory Opinion of 1950 ,nd on the 1962Judgment on the Preliminary
Objections Io.M'hilst not disputing the value of the said Judgment as
precedeiit, Respondent has submitted that-
". . . theCourt would rilways entertain arguments directed towards
persuading it to depart from its previous judgment, and would corne
to a different conclusion where sound reasons esist therefor Il".
A sirnilar principle u7as submitted to apply in the case of Advisory
Opinions 12.
Althoiigh the argument now presented to the Court rclating to the
cornpromissory clause islargely the çame as that adduced for the purposes
of the Preliminary Objections, the issues dealt with and decided by the
Court in this respect in 1950 were subçtantially different 13.
In regard to the differences between the issues in Igjû and 1962,
' IV, pP 249-254.
* Ibid.. p253.
Vide para.6. supra.
~VorthernCamcroons,Judgincnt, I.C.J. Report11363.p. 15.
Vide para. II.supra.
~VorlhcrnCameroons,Judgment. I.C.J. Reports 1963,p.15 at p. 38.
Ibid., pp76-91.
Ibid., ppI 11-17and irg-127.
Ibid., pp.1.12-149Sed contra Judge Badaiui (p. t52)and Judge Bustamante
(pp. 157-162).
la IV, pp.540, 542and 546.
liII,p. 103.
l2Ibid., pp98-102. Vide also Chap. II, para2,sripra.
I3Vide 1.pp. 365-373.393-394.gS . SOUTH WEST AFI<ICA
reference map be made tothe followingpassage from the joint dissei~ting
opinion of Judges Spender and Fitzmaurice on the Preliminary Otijec-
tjons:
"Some of the issues now arising (those connected with the third
and fourth preliminary objections) did not anse at all,and could not
have ariaen, in the course of the ïgjo proceedings, which were not,
as these are, contentious proceedings. As regards one of the central
issues arising in1950 ,amely that of the status ofthe Mandate as
an international ilzstitutionthe Court in 1950 did little more than
find, on vanous grounds, that the dissolutiori of the League of
Nations had not caused the Mandate to lapse, and tliat despite this
dissolution, the Mandate was still in force. But the Court did not
specifically address itself tthe question of the basis upon which the
Mandate was in force rior, in particular, to whether it was still in
force as a treatyor co?rveritioI. the dispositive of its1950 Opinion,
the Court did no more, in relation to the present contest, than state
that by reason of Article 37 of the Statute, the present Court !ras
substituted for the former Permanent Court; but both there, and in
the very brief references to Articl37, and to Article7 of the Mandate,
made in tlie body of the Opinion, the Court seems to have assumed
the esistence of the necessary conditions without going into that
matter. The Iittle that was said provides no real assistance, and this
was necessarily so since no jurisdictional issue of any kind was before
the Court in 1950. Assumptions apparently made withoiit any
reasoning as to, or consideration of, the specific underlying issues
involved, in anAdvisory Opinion directed chiefly to other matters not
involving any concrete jurisdictional qiiestion, clearlv do not consti-
tute a sufficierit liasis on which to found jurisdiction in subsequent
contentious proceedings in which these issiies are now directly
raised l."
Applicants are consequently wrong in suggesting that the arguments
now raised, had al1becn presented to and decided by the Court in 1950 2.
They are aIso wrong in their specific statement that the issue relating to
the scope and purpose of the compromisçory clause (which mas in sub-
stance compi-ehended in the third Prelimiria~ Objection)-
". .. raises the question,lwicepresentedtoand adj~dged by theCourt:
what are the provisions of the Mandate, as to which dispiites con-
cerriing interpretatiori or application are properly referable to the
Court? 3" (Italics added.)
It should also be recalled that the decision on the Preliminary Ob-
jections was reached by a very narrow majority, and, in the words of
Judge Tanaka,
"CtJhe forma1 authority of the Court's decision must not be inain-
tained to the detriment of its substantive authority. Therefore, it is
quite inevitable that, from the point of view of the conclusion or
reasoning, the minority in one case should become the majority in
' South M'estAfvica, PrelimirzaryObj~cliunsJudgmsnt. 1.C.j.Reports 1962,
P. 319atp. 472.
IV. pp.522 and 546
Ibid.. pjqo. REJOINDER OF SOUTH AFRICA 99
another case of the same kind ivithina comparatively short space
of time l."
15. As clemonstrated above, Respondent's argument regnrding the
compromissor~~clause in Article 7 of the Mandate, is in material respects
not controverted by Applicants in the lieply. \irhere Applicants do
dispute particular aspects thereof, it is submitted, for the reasonsset out
above, that their arguments do not detract at al1 from the validity of
Respondent's contentions.
Barcelonn Traction, Light and PowCompany. Limited, Prelitninary Objections,
Judgmant, I.C.J. Reports 1964. p.at p. 65. PAKT III
Sectioti A
GENERAL
1. Introductory
I. In the present Part of the Rejoinder, Respondent will deal witli
Applicaiits' argument regarding the issues raised by their Submissions
3 and 4,i.e., the issues arising from alleged violations of Article2, para-
grapli 2, of the Mandate l. Respondent's treatment of these issues
occupied the major part of the Counter-Jfemonal, viz., Books IV to VI1
and Book VIII, section A, al1of which are to be read with Book III and
the Supplement to the Counter-Jlemorial. As in the Counter-Memorial2,
the present issues will be dealt with on the assumption, for purposes of
argument, that the Mandate is still in existence.
Before proceeding to a consideration of the merits of matters raised
in the Reply relevant to the preçent issues, it wili be necessary to deal
with a number of topics of a general or introductory nature. The present
section wi1lbe devoted to such purpose, commencing, in the next para-
graph, with an analysis of the legal basis of Applicants' charges as
expounded in the Reply. As wlil be shown 3, the basis of Applicants'
charges as set out in the Reply has undergone a substantial change from
that contained in the Memorials, aiid Applicants have in truth sought to
introduce a new cause of action regarding their subinissions under
consideration.
II. TheLegalBasis of Applicants' Charges
2. In its Counter-Jlemorial, Respondent contended that Article 2,
paragraph z,of the Mandate, read in the light of the Covenant, required
Kespondent to use its powers of administration and legislation for the
purpose of promoting to the utmost tlic iriaterial alid moral well-king
and the social progress of the inhabitants of the Territory. The conse-
quence of this waç, in Respondent's submission, that the particular
methoci to be employed towards achieving this purpose was left to
Respondent's discretion, and that legislative or adn-iinistrative action
could therefore violate Article 2, paragraph z, only if actuated by a
motive or intent other than one directed to such purpose *.An analpsis
of tlie blemorials likewise led Respondent to the conclusion that-
". ..the case alleged agains<~espondent, inregard to the çuggested
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
' VideIV,Reply, Chaps. IVand V, readwith parts of Chap1II. Videalso Part II,
Chap, I, para.2,supra.
Vide II,p.38r.
, Vide particularl>+paras2-8,intra.
' VideII, pp. 384-392. IiEJOINDER OF SOUTH AFRICri IO1
pursued actions ostensibly within its powers for a purpose not
authorized thereby l".
3. Applicants, howcver, in their Keply strenuouslp contest the
correctness of the above conclusion 2. They Saythat-
"Respondent's misinterpretation of the import of the Submissions
reflects its fallacious assumptions regarding the nature of the hlan-
date and of the character of Responclent's duties thereunder 3."
In sosaying they probablv have in mind their construction of Respond-
ent's contentioii as being that "Article z, paragraph 2, does not . . .
create or embody obligations of a legal nature, but is ... a rnerely
political or moral exhortation" 4.
As demonstrated above 5,what is "fallacious" is not Respondent's
"assurnptions regarding the nature of tlie Mandate", but rather Appli-
cants' representations regardiiig the nature of Respondent's contention.
4. In fact, Applicants Say, their Submissions 3 and 4 are based on the
following conclusion of fact set out in the Alemorials:
". . .By law and by practice, the Union has followed a systematic
course of positive action whicli inhibits the well-being, prevents the
social progress and thwarts the development of the ovenvhelming
majority of the people of South West Africa. 111 pursuit of this
systematic course of action, and as a petvasive ieature of it, the
Union has installed and rnaintained the policy and practice of
apartheid.
Under a$arlheid, the status, rights, duties, opportunities and
burdens of the population are determined and allotted arbitrarily
on the basis of race, color and tribe, in a pattern which ignores the
needs and capacities of the groups and individuals affected, and
subordinates the interests and iights of the great majority of the
people to the preferences of a minority. Since this section of the
hlemorial is concernedwith the recordof fact, it deals with apartheid
as a fact and not as a word. ILdeals uiitlaapartheid in praclice, asit
actzially isalid as it acrually has been in the lifeof the people O/ the
Territory, and not as a theoreficd abstraction . . .6." (Italics added
by Applicants.)
On the basis of the above-quoted conclusion of fact, Applicants then
reaffirm their Submissions 3 and 4 as rneaning-
". . . that Respondent's policies and practices, as set forth in Chapter
V of the ~liiemorialsand in this Chapter IV of the Reply, charac-
terized and described bp the terrns 'aparfhid' or 'separate devel-
opment', have violated, and do violate, Respondent's obligations
toward the inhabitants of the Territory in tcrms of ilrticle 2,
paragraph 2 of the Mandate 7".
This is not particularly illuminating, since apartheid itself is defined in
the above-quoted conclusion of fact aç a deliberately discriminatory and
Vide II,p. 395.The analysisis found atpp. 392-395.
* IV. pp. 35-25:.
' fbid.p..255.
+ Ibid..p. 477.
Vide Part II, Chap.11,paras.I 1-14, supra.
IV, pp.2.56-257.
Ibid., p257. IO2 SOUTH WEST AFHICA
oppressive policy. And Applicants indeed clonot abjure their allegations
of delibcrate and iiitetitioiiril misconduct on thc part of Respondent. On
the contrary, they Say:
"Applicants' characterizations of Kespondent's policies and ob-
jectives by terms such as 'deliberately', 'knowingly', and the likc,
clearly are intended as inferences ancl conclusions reasonably
flowing from Respondent's course of conduct, which is set forth
esplicitly and fully in the Memorials. Such characterizations
reflecta unitrersally accepted asiomthat, in ille absence of evidcncc
to the contrary, the predictable consequences of conduct are
presumed to be intended l." (Footnote omitted.)
5; In an argument directed towards showing that Respondent was
aware of the nature of their charges,as set out in the quotation irnmedi- ,
ately above, Applicants state that the- used the mords "deliberate"
and"systematic" interchangeably in their hlemorials "Systematic"
is defined in the ShorterOxford English Dictionary as follows:
"Arranged or conducted according to a syçtem, plan, or organized
method; involving or observing a system . . .Qualifying nouns of un-
favourable meaning: Kegularly organizecl (for an evil purpose), or
carried on as a iegular (and reprehensibie) prnctice 3."
The only "system, plan or organizedmetliod" rcferred to byApplicants,
u7asthe "pattern which ignores the needs and capacities of the groups and
individuals affected, and subordinates the interests and rights of the
great majority of the people tothe preferences of a minority" to whicli
refereiice was made in Applicants' definition of apartheid. And immedi-
ately aiter the passage from the Alernorials quotedabove 5,Applicants
said that-
". .. apartheid, as actually practiced in South \l'est Africa, is a
delzberateand systematic process by which the Mandatory escludes
the 'Natives' of the 'l'erritory from any significant participation iii
the iife of the Territory except insofar as the Alandatory finds it
necessary to use the 'Natives' as aii indispensable source of common
labor or menial service 6". (Ttalics added Save for the word "afiart-
heid" .)
It was this alleged "pattern" or "deliberate and systematic process" to
which Applicants referred when they said: "The record as a whole
reveals the deliberate design that pervades the several parts"
(italics added) ,and-
"The Unioii hns riot only failed to promote 'to the utmost' the
material and moral well-being, the social progress and the d~\~elop-
ment of the people of South Africa, it has failed to promote
such matenal and moral well-being and social progress in any
significant degree whatever. On the contrary, e@ortsof th Union
IV.Ir.2.57. Videalso p557.
* iV, p.257.
' Onians, C. T.(Ed.), The Slrovter Oxford Eaglislr Ilictionary. 3rd ed(1959),
p. 2116.
Italics added.
Videpara. 4, supva.
1,p. 109.
Ibid., p.161. KEJOIKDER OF SOUTH AFRICA IO3
have in /act been directed to the ofiposite end l." (Italics added Save
for the words "to theutmosl".)
In sum, the "system, plan or argaiiizcd rnethod" to which Applicants
referred by the use of tlie word "systernatic", was the policy which they
called apartheid and which they defined as involving a "pattern" or
"deliberate and systernatic process" or "deliberate design" of oppressive
discrimination against the majority of the population for the benefit of
the minority. Corisequently "systemntic" could indeed appropriately be
used intercl-iangeably with "deliberate". And Respondent, if following a
pattern or system directed not at promotion of the interests of the inhabi-
taiits of the Territory, but "to the opposite end", tvould clearly be guilty
of ". . . bad faith ... in the sense that is has pursued actions ostensibly
within its powversfor a purpose not authorized thereby" 2.
6. The only point made by Applicants in the passage of the Reply noiv
under consideration 3, is consequently that the element of deliberation or
intention (or bad fait11 in the sense aforestated) which they alleged in
their Alernonals, was and is sought to be established by inference from
liespondent's alleged course of conduct, in accordance with the univer-
snlly accepted asiom "that, in the absence of evidence to the contrary,
the predictable consequences of conduct are presumed to be intended" +.
This point was indeed, as Applicants assert 4, Eully appreciated by
Respondent. Itwas by reason of its appreciation of the nature of Appli-
cants' case tliat Kespondeiit preserited the Court with full and accurate
information to demonstrate that no inference ol the kind alleged by
Applicants could be drawn, but that, on the contraq-, the Court should
conclude that Respondent's poIicics were, andare, directed at the uplift-
ment and progress of al1the inhabitants of the Territory. Or, to apply the
terminology of Applicants' "universally accepted asiom", Respondent
hrought "evidence to the contrary" to demonstrate that its intent was not
siich as was sought to be presumed-partly in that its conduct !as
different from what was alleged, and partly in that a different perspective
was cast upon consequences, real and prospective, and their predictability,
by a fuller knowledge of background, settingand circiimstances.
Wowever, in the very nest breath, so to speak, Applicants Say:
"As is pointed out herein 5, ço much of the evklence as is adduced
by Respondent for the purpose of demonstrating its 'good faith', or
that it is [not?] 'actuated hy an intention .. .other than one to
promote the interests of the inliabitants', would be imwaterial evefz
if if did ... tend to show such 'good faith' o r the absence of such
'intentioa'6." (Italics addedand footnotes omitted.)
In other ~vards,Applicants now contend that Respondent can commit a
violation of Article2, paragraph 2,ofthe Mandate even ifal1 its legislative
and administrative acts were and are motivated by a bona fide intention
to prornote the interests of the inhabitants of the Territory. In the nest
= 1, p.10s.
Vide para. 2,supra.
Vidt IV, pp.~ ~ 6 - ~nd para. 4,supra.
* IV,p. 257.
' Iteferring backitniustbe noted.to thevery page on which they dealwith their
"universaliyaccepted nxiom".Io4 SOUTH WEST AI-'RICA
succeeding paragraphs Respondent endeavours to ascertain tlie true
purport of Applicants' contention in this respect.
7. As noted above l,Applicants contend that Respondent's policy of
apartheid contravenes Article 2, paragraph z, of the Mandate. Since,
however, they define apartheid as a discriminatory policy deliberately
imposed to oppress the Natives for the benefit of the European inhabi-
tants, their contention in this regard still involves an enquiry into
Respondent's motives or intentions. And when referring to the policy of
apartheid, Applicants usually render it cIear that the reference is to
apartheid as defined by theni 2.
Hoivever, in addition to persiçting rvith these factual charges of de-
liberate oppression-which constituted the only possible legal foundation
for Applicants' case, as advanced in tlie I\.iemonals, in support of tl-ieir
Submissions 3 and 4 3-,4pplicants introduce a far-reachinginnovation in
their Reply. This consists of a contention which is ayparentlq7to be under-
stood as meaning that a mere differentiation between ethnic groups,
without an? intention to benefit one group at the expense of another,
would constitute a violation of Article 2, paragraph 2, of the Mandate.
Thus they say :
"AppLicants' Submissions 3 and 4 are grounded upon the premise
that allotment to the inhabitants of the Territory ofstatus, rights,
duties, opportunitiesand burdens on the hasis of race, color or tribe,
does not promote their well-being and social progress. This is but ,
another way of saying that Respondent is obliged, in terms of the
Mandate, to accord to the inhabitants of the Territory legal 'equality
of status', as individual fiersons.
Asis clear from the record herein and, indeed, as is asiomatic to
Respondent's cause, the contrary premise underlies Respondent's
poIicy: the status, rights,duties, ofi$ortunities and bzcrdensof the in-
habitants of the Territory are callotiesolelyon thehasis of their qztality
and characler as iflembers of 'groufis',rather than as individzrnls +."
(ltalics in original.)
In a later passage, they refer to-
". . . the policy of apartheid, ivhich in itself violates Article2, para-
graph 2 of the Mandate, by reasogt ofthe factthat it allots the status,
rights, duties, opportunities and burdens of the population on the
basio sf membership in a 'group', or colour, rather than on the basis
of individual qualitv, capacity or potential 5". (ftalics adcied, Save
for the word "aparlheid".)
And they state that-
"Applicants . .. insist that the allotment, by governmental policy
and action, of rights and hurdens oii the basis of membership in a
'group', irrespective of individual quality or capacity, is impermis-
sible discrimination, outlawed by legal norms well established in the
international cornmunity 6."
Vide para. 4, supra.
Vide,e.g.,IV, p.260.
Vide para.2. supra.
IV,p. 269.
Ibid.. p475.
Ibid.pp. 492-493 Vide ülso,cg., pp.271 and 404. REJOlNDER OF SOUTH AFRICA IO5
In spite oi referring, in this passage and in others in the Reply, to
"legal norrns" in the plural, Applicants ascribe a specific content to, and
make a real attempt at establishing the existence of, only one norm,
which, in their contention, is said to imparta definable minimum content
to al1 the other more vaguely conceived "norms" '; and so their con-
tention under consideration rests in truth only on this one alleged norm =.
This is called by Applicants the "generally accepted international human
rights norm of non-discrimination or non-separation". Apart from provid-
ing the definable minimum content of the other "norms", the existence
and "virtually universal acceptance" of this alleged norm is said to give
"a concrete and objective content to Article 2, paragraph 2, of the
Mandate" 3.
As re-ards the content of the norm, AppA.cants Say:
". .. the terms 'non-discrimination' or 'non-separation' are used in
their prevalent and customary sense: stated negatively, the terms
refer to the absence of governmental policies or actions which allot
status, rights, duties, privileges or burdens on the basis of mernber-
ship in a group, class or race rather than on the basis of individual
merit, capacity or potential: stated affirmatively, the terrnç refer
to governmental policies and actions the objective of which is to
protect equality of opportunity and equal protection of the larvs to
individual persons as such
Applicants then devote considerable space to an attempt at showing
that Article 2 of the Mandate must be interpreted to contain this asserted
"norm of non-discrimination or non-separation" ', the general acceptance
of which, they Say, ". ..is of decisive relevance to the Cases at bar" 5.
S. It will be manifest that, by advancing their contention and argu-
ment, as outlined above, in regard to this alleged "norm ofnon-discrimina-
tion or non-separation", Applicants have in the Reply introduced a new
cause of action in attempted support of their Submissions 3 and 4, and
have manifested a major shift from the stand taken in that regard in the
hlemorials. Possibly Applicants have realized, in the light ofthe exposition
given in the Counter-Afemorial, that their charges of deliberate oppres-
sion are not supported or s~ipportable by the facts. Possibly there is
political motivation for an attempt at seeking a ruling from the Court to
the effcct that any differentiation on the basis of membership in an
ethnic group, whether for a purpose of upliftrnent or for a purpose of
oppression, violates the Mandate and "is impermissible discrimination,
outlawed by legal norms wellestablistted in the international community".
Possibly both these factors or more, are at work. Be that as it may, that
there has been a major shifting of ground is beyond question.
Itis true that by reference to their alleged "norrn of non-discrimination
or non-separation" Applicants can plausibly contend that evidence
tending to show an absence of any intention on Respondent's part other
than one to promote the interests of the inhabitants, would be immate-
IV,pp. 511-512.
* The sjgnificance. if aofother undefined "norms and standards" referred to
by Applicants isconsideredbelow. (Sec. C, paras. 32-39, infra.) For present pur-
poses,any such "norms and standards" may, however, be disregarded.
IV, p. 493.
Ibid..pp. 493-512.
Ibid.,p. gro.IOG SOUTH IVEST AFRIC:I
riall. Ifindeed Article z of the Mandate miist be read as coritairiing an
absoliite prohibition on "tlze allotment, by governmental policj~and
action, of rights and burdciis on the basis of rnembership in a 'group"' 2,
Applicants would sufficiently establish a violation of the Article by
proving such an allotment, irrespective of whetlier it \vas intended to
operate, or does in fact operate, for the benefit of the inhabitants of the
Territory. The legal position would then be siniilar to that pertaining,
for instance, tothe prohibjtion in Article 3 of the Mandate on the sup~ily
of intoxicating spirits and bevcrages to the Natives. And since Respond-
cnt's policy is avowedly based to a considcrablc estent on an allotment
of rights and obligations on the basis of niembership of the different
population groups in the Territory, there would exist no dispute of fnct
between the Parties. The position would then indeed be, as stated by
Applicants, that "the deciçively relevant fncts concerning Applicants'
Submissions 3 and 4 are undisputed" j.
But al1this would be so onlp with reierence to the case now sought to
be built by Applicantç on the alleged "norm of non-discriminatiori or
non-separation". None of it would be or is true of Applicants' case as
advanced in the 3lemorials.
g. It folIows, from what was said in the preceding paragraph, that thc
only issue between the Parties regarding Applicants' alleged "norm of
non-discrimination or non-separation" is a legal one, viz., whether such
a norm can be read into Article 2 of the Mandate by a process of inter-
pretation. And since Applicants' Submissions 3 and 4 are both said to
be based on the existence of this norm 4,it might be thought asufficient
answer to theçe submissions for Respondent to demonstrate the unten-
ability of the reasoning whereby Applicants now seek to introduce this
norm into the Alandate. However, the ambigiious and confused formula-
tion in the Reply of the basis (orbases) of Applicants' case, does not make
it clear that Applicants have indeed now decided to abandon their charge
of bad faith (in the sense oi pursuing an unauthorized purpose) which
ernerged so clearly from the Mernoriais. In particular the following
features militate against such abandonment:
(a) As has been noted 5,when first joining issue with Respondent on
the legal basis of Submiasions 3 and 4, Applicants do not discard
their allegations of improper motives on the part of Keçpondent,
but merely advert to the method by which they seek to prove such
motives.
(b) If Applicants base their case solely on the alleged legal norm of
non-discrimination or non-separation, then the "decisively relevant
facts concerning Applicants' Submissionç 3 and 4" would indeed
be, as they Say, undisputed. However, Applicants have introduced
intheir Reply a mass of factual disciission and averment, of a most
highly controversial content, with a view to supporting their said
Vide para. 6supra.
Vade IV,pp. 492-493; and para. 7, supra.
Ibid., 260. Videalso pp22 rand 262-263.
' IV, p269, as quoted in para. 7, supra, and the statements to the effcthethat
"decisively relevant facts concerning Applicants' Submissions 3 a4dare undis-
puted", towhich reference aas made inpara. 8,supra.
' Videparas. 4-6, supra. REJOINDEK OF SOUTH AFIilCA Io7
submissions. This trentment of the facts indeecl takeç up consider-
ably more space than the whole of the Memorials l.
It is difficult to imagine the purpose for which this material is
introdnced unless Applicants consider that there is an issue of fact
to bc detcrmined betweeri the Parties. And the only basic factual
issue in this regard is thc one relating to ITespondent's motive or
state of mind. This consideration gains increased weight when one
considers the nature of the deductions souglit to be drawn from the
tendered material-a matter which will bc dealt uith in the next
subparagraph.
(c) Applicnnts themselves describe the purpose of their treatment of
the various aspects of ICespondent's palicy with which they deal *,
as being to show that-
". .. Respondent'ç policy and practice witii respect to each of these
aspects of life, is [sic] directed toward the primary end of assuring
an adequate 'Native' labour supply in the Territory, pnrticularly
in its '\fihite' PoliceZone (comprising more than seventy per cent
of the Territory), subject always to the condition that, in the words
of Respondent's Prime hlinistcr, 'There is no place for him [i.e. 'the
.13antu'] in the European comrnunity abovc the level of certain
forms of labour' 3".
Applicants further allege that Regpondent !kas rendered its obligations
under the Mandate "subject to the prejudices and attitudes of a small
rninority" 4 of the population. They sumrn:~rize their contentions as
follows :
"In sum, under apartheid, the accident of birth imposes a man-
datory life sentence to discrimination, repression and humiliation.
It is, accordingly,in violation of Respondeiit's obligation, as stated
in Article z,paragraph 2,of the Mandate, to promote to the utmost
the wetl-being and social progress of the inhabitants 5." (Italicç
added save for the word "npartheid".)
It appars explicitly from these passages that Applicants still rely on the
allegation that Respondent's policy is directed at the unauthorized
purpose of oppressing the Natives for tlie benefit of the European in-
habitants of the Territory, and that their factual discussion is introduced
for the purpose of establishing suc11allegation.
IO. For the reasons set out in the preceding paragraphs, it would then
appear that Applicants' case, as noiv formulated in the Reply, rests on
two bases (apparently invoked in the alternative, although nowhere
clearlj. so stated or explained), viz.,
(a) the suggested legal norm of non-discrimination or non-separation,
in terms of which any differentiation between groups in tlie allot-
ment of rights and burdens is said to be a contravention of Article 2
of the Mandate, and,
' Chapter IV of the Reply, dealing mith "Respondent's violations of its obliga-
tions towards the inhabitants ofthe Territory", comlirises220 pages whereas the
hlemorials each contain only 170 pages of text.
1.e..relating to education, the economy, political rights, and secofithe per-
son, rights ofrcsidenceand freedom of rnovement.
IV, p.272.
Ibid..p. 273. Videalso p. 274.
Ibid..p. 274,108 SOUTH WEST IIFRICA
(b) some basis (the exact nature and source of which are not indicated)
which requires proof of the factual allegation that Respondent's
policies are actuated by a motive other than one to promote the
interests of the inhabitants of the Territory.
Since Applicants' case appears to have thi; twofold charactcr, Rc-
spondent willdeal separately with each aspect tliereof l.Refore doing
so, however, there are some general aspects of Applicants' case to be
considered in the nest succeeding paragraphs.
III. Applicants'Caseregarding the Coloured and Baster Groups
1
II. Applicants Say that Respondent has been guilty of an "unwarran-
ted rnisinterpretation" and a "strained construction" 3 of their Sub-
missions 3 and 4 ". ..as excluding certain groupç or individuals in the
Territory designated . ..'CoIoureds' or 'Uasters' " *.
Accordingly, Applicants now "reaffirm" that "Subrnissions 3 and 4 do
not exclude, and may not reasonably be interpreted as escluding from
tlieir ambit any inhabitants whatever of the Territory" '.
It will be recalled that both the said submissions incorporated by
reference a paragraph of the Mernorials cornmencing as folloms:
"Deliberately, systematically and consistently, the niandatory
has discriminated against the 'Kative' fio$ulalian of Saalth West
Africa, which constitutes overwhelmingly the larger part of the
population of the Territory. In sodoing t,e hlandatory has not only
failed to promote 'toth trtmost' the material and moral weli-being,
the social progress and the development of the people of South
West Afnca, but it has failed to prornote such well-being and social
progress in any significant degree whatever 5." (Italics added Save
for the words "to the utmost".)
This paragraph concluded :
"The gnm past and present reality inthe condition of the 'h'ati\,es'
is unrelieved by promise of future amelioration. The JIandatory
offers no horizon of hope to the 'Native' population =."
In fact, the whole Chapter V of the iilemorials6rendered itabundantly
clear that Applicants' entire case was based on the allcgation that Re-
spondent had violated itsduty tofjromotetheinterestsof al1the inltnbitands
by oppressing some of tkm (Le., the Natives), for the benefit of others
(i.e., the Europeans)'.
12. In view of the formulation of Applicants' submissions in the
Afen~orials,as summarized in the immediately preceding paragraph, the
attitude now adopted in the Reply amounts to an attempt to alter and
estend the nature of their charge, apparently to bring it into conformity
with their newly introduced Iegal norm of non-discrimination or non-
In secs.B and C hereof respectively.
IV,p, 257.
3 Ibid.p. 258.
'Ibid.. pp. 25s-259.
=1, p.162.
Including the said para190,as well as para. 189,whicwas alçoincorporated
by referenceinSubmission 3. Vide para.12, infra.
Vide II, pp. 382-383. REJOINDER OF SOUTH AFRICA *O9
separation. Possibly this may also be a belated attempt to divert at-
tention from Applicants' very evident pre-occupation with Native in-
terests, in consonance with the general trend of Black Afncan National-
ism. Be that as it maÿ, Applicants try ta show that their case, as arigin-
ally forrndated in the Memorials, has not undergone a change in this
respect. Their attempts in this direction are, it is submitted, singularly
unimpressive.
Thus, in the only explanation they offer for their "numerous explicit
references to 'Natives' " ',they start off by pointing out that the word
"Natives", as used by them, was always in quotation marks =.The rele-
vance of this is not readiiy apparent. From the hlemorials itwas quite
clear that Applicants used quotation marks for the terms "Xatives",
"Whites", "Asiatics" and "Coloureds" simply because, as explained bp
thein, these were the terms employed in a census report, "reflecting the
standard usage of the Union Government", in referring "to the popula-
tion as divided into four groups" 4.What further significance they seek
to attach to it, is not understood, particularly since AppIicants do not
appear to dispute that the Natives constitute a distinct and identifiable
population group in South IVest Africa 4.
They proceed in their Reply to refer to the fact that the hlemorials
were said to ". .. deal with apartheid in practice, as it actuaIIy is and as
it actually has been in the life of thepeopleofthe Territory, and not as a
theoretical abstraction" They refrain, however, from quoting the very
nest sentence in the Memorials, in which there was set out what they
alleged apartheid actually to be in the life of the people of the Territory,
VIZ.,
". ..that a$arthid, as actually practised in South West Africa is
a deliberate and systematic process by whicli tlie Mandatory es- -
cludes the 'iVatives' of the Territory from any significant participa-
tion in the life of the Territory except insofar as the Mandatory
finds it necessary toilse the 'Natives' as an indispensable source of
common labor or menial service 4". (Italics added Save for the word
"apartiwid" .)
Applicants further point to the use of the expression "the inhabitants
of the Territory" in Submissions 3 and 4, which expression, they Say,
was employed "without qualification or restriction" l. However, the
alicged breaches of Article 2, paragraph z, of the Mandate were defined
in the said submissionç by referencc, respectively, to "the respects set
forth in Chapter V of this Memorial and summarized in Paragraphs 189
and 190 thereof" 6,and "the economic, political, social and educational
policies applied within the Territory, which are described in detail in
Chapter V of this Memorial and summarized at Paragraph rgo thereof" '.
Respondent has already pointed out 8 that Chapter V of the Memorials,
including the two parrigraphs mentioned, was directed towards showing
IV, p.2j8.
2 Ibid.. p.257.
' 1...>. 1-s-IO.
' Ibid.,p. log.
3 IV, p.zjS (italicadded by Applicants);1, p. ras.
Submiçsion 3, 1, p. r97.
' submission 4. ibid.
A Vide para. Ir, szipra. II0 SOUTH WEST AFRICA
that Respondent was violating its obligations in so far as the ATatives
were concerned.
13.In a remarkable attempt to show that "Respondent \vas not in
fact misled by Applicantç' ernphasiç on 'Xatives' ", Applicants point
to Respondent's o\~~nformulation of the dulies sought to be implied by
Applicants in the general provisions of Article 2 of the Mandate. Appli-
cants' suggestion in this regard appears to be as follows:
(a) esp ponde wnas aware of ~p~licarits' contention that Respondent
was ulzdera duty to promote the interests of al1the inhabitants of the
Territory.
(b) Consequentljr \\*en Applicants alleged that this duty had been
violated, Respondent must have been aware that they were charging
a violation in respect of al1the inhabitants, and not only in respect
of the Natives towhom the charge it7asin terms confined '.
The lack oi logic in this reasoning is soapparent as to require no furtlier
comment.
14. After cornmencing with an averment of "unwarranted misinter-
pretation" on the part of Respondent, followed by an allegation of
"strained construction" and a charge of disingenuousness in pretending
to be niisled by Applicants' formulation of their charges, .4pplicants
finally conclude with the somewhat naive statement that-
"[iln the light of Applicants' explicit interpretation and reaffirma-
tion of the meaning of their own submissions, it is respectfully sub-
mitted that amendment thereof is unnecessarv and unwarranted 2".
15. It remains to consider the effect of Applicants' "explicit inter-
pretation and reaffirmation" of tlie meaning of Submissions 3 and 4 on
a the issues as they now appear from the Reply. In view of the twofold
basis on which Applicants now present this part of their case 3, regarcl
will be had to both bases. The first basis involves the allegation that any
differentiation between groups constitutes, as a matter of law, a contra-
vention of Article z of the Mandate. In so far as this newly intoduced
part of Applicants' case iç coiicerned (asdistinct from the case onginally
alleged in the Memorials), it would be correct to say that Applicants
charge does not allege a contravention in respect of anjr particular
population group.
The second part of Applicants' case is, however, still based on an
alleged deliberate process of discrimination against the Natives for the
benefit of the Europeans 5.Although Applicants do in passing refer to
some instances of differential nieasures applying to Coloured people 6,
they do not, in so far as the Coloureds are concerned, make an attempt
to support a charge, as they do in the case of the Natives, of a process of
deliberate oppression for the benefit of the Europeans. In regard to this
part of their case, Applicants consequently do not appear to have clranged
theirground to any considerable estent in the Reply. At most the purpose
of their "reaffirmation" in this respect appears to be to contend that-
Ibid., p259,footnote 1.
Vide para.IO, supva.
In effect an alternativalthough nowhere soput by App1ic:ints.
Vide paras.4-6, supra.
Vide,e.g., IVpp. 363 and 4'7. REJOIXDER OF SOUTH AFRICA III
"., . the policy of apartkeid is injurious to the genuine interests and
welfare of the ejztire population, including those ~vhosebenefit and
privilege are purported to be served thereby l".
In more tangible tem~s(and in tlic light of their definition of apartheid) 2
this submission appcarsto mean na mare than that Respandent's policies
which are deliberntely oppressive of the Natives, are for that reason also
detrimental to other groups. Such limited averment (ifany) as may now
have been introcluced in the Reply regarding the additional eleaient of
detriment to groups other than the Natives, however, hardly affects the
essence of the dispute between the Parties, inasrnucli as Respondent
contends, and has always contended, that its policies are designed to be
beneficial to the population as a whole (including the Natives), whereas
the primary element in the second basis of Applicants' case remaiiis the
allegatioi~ of deliberateness (or bad faith in the sense of an unauthorized
purpose) wliich is said to underlie liespondent's conduct towavds the
Nuiives 3.
A good example of the manner in which the present averrnent of
detriment to groups other than Natives is advanced as being dependent
entirely on the premise of oppressive conduct towards the Natives. is to
be found in the following passage regarding education:
"In Applicants' submission, liespondent's policy of educational
aficlrtheidwith respect to the children of 'Native' perçons within the
Territory inevitably distorts the social perspective and political
and moral outlook of the children of 'Coloiired' or 'European' in-
habitants. As such, the 'Native' education policy is, in itself,a
violation of Respondent's obligation to promote to the utmost the
material and moraI well-being and the social progress of al1 of the
inhabitants of the Territory '."
This passage in itseif will be considered in the portion of this Rejoinder
dealing with education. For present purposes it suffiçes for Respondent
to point out that there is no introduction by Applicants at this stage-as
cotildindeed hardly have been perinissible-of an independent nenvcharge
alleging deliberatc oppression of groups other than Natives.
In the result it remains unnecessary for Respondent to burden the
record with an exposition of its policies, measures and active programmes
specifically directed towards the cconomic and social upliftment and
progress, and the political advancement, of the Coloured people and of
the Rehoboth Basterç. As in the Counter-Memorial 5, Kespondeiit will
refrain from presenting a systematic or complete survey in regard to
them, and references to them will be only for the purpose of esplanation
or esample, or to ansiver some specific point or allegation made by Ap-
plicants.
' Vide e.g.. IV, 1'. 258.
Vide para.J, slipru.
Vzde paras.4 and IO, supra
* IV,p. 364.
5 Il,p.383.II2 SOUTH WEST XFRICA
IV. The SigrûficanceTo Be Attached to Reports and Resolutions of
UnitedNationsOrgansand Agencies
16. A further alleged misconstruction of Applicants' Submissions 3
and 4 is said to appear from Respondent's attitude regarding the signific-
ance to be attaclied to reports and resolutions of the United Nations, its
agencies and organs, which werereferred to in Chapter II ofthe Memorials.
The said Chapter, headed "History and Background of the Dispute",
contains a summary of events in the United Nations relative to South
\Vest Africa up to the year 1960, and concludes mith tlie words:
"Waving concluded after fourteen years of fruitless efforts to ob-
tain compliance on the part of the Union with the Mandate, that
its dispute with the Union has not been, and cannot be, settled bp
negotiation, the Applicant lias deerned it necessary to institute the
present proceedings, pursuant to Article 7 of the Mandate l."
It is to be noted that the account of events is arrariged in a chronologi-
cal order, and not according to subject-matter, although the material
relates to various issues in this case, such as the esistence or otherwise
of accountability towards the United Nations *; questions as to unilateral
incorporation of the Territory or modification of its international status 3;
and the general welfare of the inhabitants 4.
In view of the heading, contents and method of presentation of the
said chapter, it can hardly be surprising that Respondent gained the im-
pression that its purpose was to establish the existence of a dispute be-
tweeii the Parties, and no more (except possibly, the further factor that
such dispute could not be settled by negotiation).This view was fortified
by the fact that in their specific charges Applicants in many cases relied
on specific United Nations reports and resolutions relevant to the par-
ticular subject under consideration $, and did not purport to rely on
Cbapter II of the Rlernorials in general.
Applicants now Say that Respondent's reading of Cliaptcr II of the
Rlemorials, dealing, as has been noted, with a chronological review of
events related to a number of the present issues 6, reflects a "third mis-
construction by Respondent of Submissimis 3 and 4" 7 (italics added), as
a result of mhich the relevancy of the said reports and resolutions was
wrongly disputed by Respondent 8.
I~. Applicants' attitude shows that there iç iii this respect a matter of
substance requiring decision by this Court, viz., the significance to be
attached to reports and resolutions of the United Nations, its agencies
and organs, particularly with reference to the issues arising from Appli-
1 1, 1''87.
* Vide,e.g., ibidpp. 58. 59-60,65 and 75.
' Ibid.. pp. 58,71 and 74.
+ lbid.. PP.64. W. 70-71. 73-74, 75-77.76 and 5344.
5 Vide IIp.3.
IVhich would include those arising from Applicants' Subrnissions1, 2.3, 4, 5,
7. S and -vide 1. pp. rg7-rgS.
The firît two beitig as thecharges being based on an allegatioof bad faith-
paras. ?-IO.supra-and as to the charges excluding the Coloureds and Hasters-
paras. 11-1j,supra.
' IV,P, 2jg, HEJOIBDER OF SOUTH AFRICA II3
cants' Submissions 3 and 4 l.In this regard Respondent's subrnission
was twofold. Firstly, Respondent contended:
"The said reports aiid resolutions contain political findings and
reconimendations made by political bodies or organs. As such the
findings and recommendations, it is subrnitted, are of no relevance
whatsoever to this Court's judicial function, which is to be esercised
on the basis of the facts, evidence and other material properly
placed before it 2."
Applicants' reply to this contention is that their Submissions 3 and 4
do not "rnerely request the Court to adjudge and declare concerning
allegations of fact", but "request the Court to adjudge and declare that
the policies and practices of which Applicants cornplain, are, as a matter
of law, in violation of Respondent's obligations as stated in Article 2
of the Mandate" 3.And since the issues now before the Court are ideiitical
with the issues before the United Nations, so it is contended, the reports
and resolutions of the said body "are highly relevant to the Court's
judicial function in adjudging the legality of Respondent's administration
of the Territory, and areentitled to great weight and respect as authority
thereon" 3.
18. Respondent is not quite clear as to what is meant by Applicants'
contention summarized in the previous paragraph. In this connection
regard must be had ta the dual nature of Applicants' case.
In its first aspect, Applicantsrelyon an alleged norm of non-discrimina-
tion or non-separation. If they must be read as contending that resolu-
tions and reports of United Nations organs and agencies may be invoked
to establish the existence of such a norm in the Mandate, such a con-
tention is to be considered in conjunction with Applicants' atternpt, in
Chapter V of the Reply 4,to establish such existence, and \vil1be dealt
with by Respondent at the appropriate place
The second leg of Applicants' argument is based on an alleged systern
of deliberately oppressive conduct on Respondent's part. The legal
proposition inherent in this submission (viz.,the proposition that policies
designed to oppress the Native inhabitants of the Territory for the benefit
of the Europeans wordd constitute violations ofthe Mandate) iç not con-
tested, and if Applicants would like, for some reason of their own, to
quote United Nations resolutions in support thereof, Respondent would
have no objection. But it rather appears as if Applicants now wish to use
these reports and resolutions as authority on the crucial question at
issue, namely whether Respondent's policies are indeed deliberately
directed at the purpose aIleged by Applicants. This is a question involving
contested facts and disputed inferences therefrorn, on which resolutions
of a political body, which has in the nature of things never atternpted a
judicial enquiry into the matter, cannot be of any assistance to the
Court.
Perhaps Applicants wish to rely on these reports and resolutions in an
even more general and vague manner, viz., as authority for the views
expressed in some of them that Respondent has violated the Mandate,
Although as indicatedabove. itarises also witrespectto otherissues.
11,pp. 3-4.
IV, p.259.
Vide IV.pp. 502-504,
Vide sec.B. infra.1I4 SOUTH WEST AFRICA
whethcr in relation to the charges actually made by Applicants in the
present proceedings or in other respects. If that is so, it is even more
difficult to see how such reports and resolutio~is could be relevant or of
assistance. Apart from the obvious irrelevancy of views expressed on
charges not made in these proceedings, al1vieivs expressed in them must
again rest on the authors' judgment and assessrnent of the law and of
facts, and the same considerations therefore apply as above.
It is to be noted that the Special Committee ior South West Africa
itself apparently did not consider that United Nations reports and reso-
lutions could be of any value to the Court as "authority" or otherwise.
Thus on 27 November 1961 the Chairman of the said Committee-
". . . pointed out that the Court would consider the matter rie. the
present proceedings] on a purely juridical level, while the United
Nations was-called upon to take a decision of a political nature. The
General Assembly had already adopted resolutionç concerning
South \Vest Africa at its previous session, namely, at a time when
the International Court of Justice had had before it the cornplaints
of Ethiopia and Liberia. It was hisvietv that whatever decision the
General Assembly made would have a political bearing and would
not influence the Court in its decisions l."
19. The second ground on which Respondent denied the usefulness of
reports and resolntions of the organs and agencies of the United Nations,
was the inaccuracy and unreliability of the factual statements, assump-
tions or inferences on which they were based 2. Applicants have not
attempted to support the accuracy or reliability of such reports and
resolutions, but state instead that Respondent's criticism was "ungen-
erous" in view of Respondent's "obdurate denial of access of United
Nations cornmittees and agencies to the Territoq~" 3.It does not seem
material to determine for present purposes whether, as Applicants
suggest, the inaccuracy or unreliability in question can be attributed
to a lack of opportunity for inspection and investigation i?zsitu, or
whether (as Reçpondent contends) there are other or additional reasons
therefor. Whatever the reasons, the point of Respondcnt's criticism
remains valid, namely that this Court cannot rely for reasonable accuracy
on United Nations reports and resolutions cited by Applicants in support
of their case.
20. Finally, Applicants make the rather cryptic statement:
"The sole exception [i.e., to the 'obdurate denial of access'j, that
of the ill-starred 1962 visit to the Territory of the Chairman and
Vice-Chainnan ofthe Special Committee for South West Africa ...
as is shown by the circumstances attending the visit and its after-
math, stands as the exception which proves the rule 3."
Respondent is not sure what rule is alleged to be proved by this
exception, but would suggest that in view of the circumstances set out
above 4,the moral to be drawn from this "ill-starred visit", and partic-
G.rl.,O.R., Sixlec~llh SessFourlh Comnz., 1225thhleetitig, 27 Xov. 1961,
para. 25, p. 419.
II, p.4.
IV, p.259,footnote 2.
Vide Part 1,para.4. and .4nnex to l'art supra. REJOISDEII OF SOUTH AFRICri II5
ularly its "afterrnatli", is that an objectivand impartial assessment of
the factç of South Africa docs not fa11within the duties which
the Special Committee for Soutli \I:est Africa set itself, thus once more
emphasizing tlie impossibility of placing any rcliance on the reports of
thisCommittee.
V. References to Other Countries, including the Applicant States and
South Africa
31. ln tlie course of the Counter-Mernorial Resporident had occasion
to refer to laws, measures, policies and circumstances in other countries,
includiiig the two Applicant States. Such reference was, as stated by
Respondent, purely by wa of example, comparison or illustration-to
show the similarity of pro lems found elsewhere in the world, and to
compare the various methods designed to solve thern, or to show the
contrast between conditions in South iVest Africa and other territories,
necessitating differences of approach in the framing of policies of legis-
lation and administration, or to render possible a measure ofcomparison
of standards of achievement in comparable circumstances l.
In view of the serious charges made by Applicants, one wouId have
thought that they would welcomc an opportunity to compare circum-
stances in the Territory wviththose pertaining elsewvhereon the Conti-
nent of Africa. On the contrary, however, one finds their attitude es-
pressed in the following words :
". . . liespondent's frequent references to practicesin other African
States, including those of Applicants, are wholly irrelevant to the
present proceedings, inasmuch as there is no other African State
subject to Mandate, nor any other State, anywhere in the world,
which yractices the policy of apartheid 2". (Footnote omitted.)
Tt is submitted that this contention, and the reasoning on which it is
sought to.be based, are untenable, for the reasons set out in the suc-
ceeding paragraphs.
22. Although it is true that tliere is no longer any other African State
subject to mandate, Respondent does not appreciate why comparison
with othcr States would thereby be rendered "irrelevant". In Africa one
finds (or found) rnandated territories, trusteeship territorieç, non-self-
governing territories, and independent States. In respect of the three first-
mentioned categories, there esist (or esisted) legal obligations in terms of
the Covenant, Charter, and relevant mandate or trusteeship instruments
requiring a promotion of the interests of the inhabitants of the territories
concerned. Although, in some respects, these obligations dif£er interse,
the broad objective surely shows sufficient correspondence to render
reference to rnethodç employed in attempting ta achieve that objective
both relevant and useful for present purposes-particularly in regard to
an issue urhether Respondent, in adopting similar methods in regard to
comparable situations and problems, has acted arbitrarily and with
oppressive intent, or in good faith with a view to promoting well-being
and progress. As far as independelit States, such as the two Applicaiits,
are concerned, Respondent has always assirmed that they also, although
l II,pp.382-383.
IV, p.364~116 SOUTH WEST AFRICA
not legally obligated thereto, in practice set themselves the objective
to "promote to the utmost the matenal and moral well-being and social
progress" of the persons under their sway. For that reason Kespondent
considered that their problems, and methods adopted towards solving
them, might throw light on the issue at present before the Court-again
particulariy as regards good or bad faith. If Applicants were to assure
this Court that they do not in fact set themselves the objective referred
to, there would be no further point in referring to circurnstances in their
countries, Save perhaps on the question of the genuineness of their
concern for the well-being and progress of the inhabitants of South
West Africa. In the absence of such assurance Kespondent nvillnot,
hourever, lightly accept that its assumption mas wrong as regards
Applicants, and in any event cannot believe that it was wrong \vit11
respect to other independent States in Africa.
23. hpplicantç' second reason for contendin that practices in other
States in Africa are irrelevant, is that no other tate practises the policy
of apartheid. This attitude would be pertinent in so far as Appfcants
rely on the existence of an alleged legal norm, which would b'.itself
render Respondent's admitted policies violative of the Mandate. As has
been noted l,Applicants' case based on the alleged existence of such a
norm requires no further evidence at ail, inasmuch as it entails that any
officia1 differentiation on the basis of metnbers~iip in a group would
constitute a contravention of the Mandate.
The position regarding the second basis of Applicants' case is, however,
totally different. In this aspect of the case, Applicants request tlie Court
to find by inference from the facts that the policies to which Applicants
refer as apartheid are designed to oppress the Native inhabitants of the
Territory for the benefit of the Europeans 2. For the purposes of this
subrnission it would seem highly relevant to compare the problems,
attempted solutions, and standards of achievement in comparable
territories and States in Africa. And it was, indeed, on this aspect of
the case only (wliich was the only aspect advanced in the Memorials)
that Respondent introduced the cornparisons in the Counter-Memonal.
The mere fact that certain aspects of Respondent's policies arenot found
elsewhere on the Continent of Africa (at least not under the name of
apartheid) would appear not to preclude a comparative survey, but, on
the contrary, to neceçsitate it, sothat the Court may have a proper setting
within which to determine and evaluate the real nature, objectives and
implications of such aspects. In fact, Applicants themselves make copious
reference in their Reply to circumstances in other territories '.
24. Allied to the topic dealt with in the preceding paragraph, is the
subject of references to circumstances and policies in South Africa itself.
In this regard, Respondent said:
"This case is concemed with Respondent's policies and actions in
South \iTest Africa, and not with those in South Africa itself. Xever-
theless it will be necessapi from time to tirne to refer to events,
policies or circumstances in South Africa, either by waj- of espla-
nation or illustration, or to answer some specific point raised by the
Videpara. 8.supra.
Vide paras4-6. supra.
) I.e.asregards Submissions 3 and 4.
+ Vide, e.g., IV, p398-403.426-430and 451-457. REJOINDER OF SOUTH AFRKCA II7
Applicants. The intention is not, however, to provide a complete
or comprehensive review of such events, policies or circumstances-
such review would be entirely irrelevant to the issues before the
Court. . .l"
Applicants do not contest the pro rietv of this approach, but, on the
contrary, appear to agree therewith f. -'
Anj-further references in the Rejoinder to policies and actions in South
Africa, will therefore be made for the same purposes and or1the same
limited basis as indicated in the Counter-hlemoria!.
VI. Summaryof Certain General Topics
2j. Finally, before proceeding to deal separately with the two bases
relied iipon by Applicants in this part of their case, it rnay be useful to
note a feature which iç coinmon to Applicants' treatment oi a number of
general topics considered in the previous paragraphs. It has been pointed
out tliat -4pplicants formulate their charge of bad faith (in the sense of
pursuing an unauthorized objective, viz., an oppressive intent) as one
to be proved by inference from the circumstances 3. It is instructive to
sec mhat circumstanccs they regard as relevant for this purpose. Firstly
they say that-
". .. so rnucli of the evidence as is adduced by ResPondent for the
purpose of demonstrating itç 'goodfaith', or that it is[not?] 'actuated
by an intention.. . other than one to promote the interestç of the
inhabitants'. would be immateriill even ifit did . ..tend to sho\v such
'good faith', or the absence of such 'intention' '". (Italics added.)
However, when it cornes to Applicants' treatment of the subject, .
evidence is tendered in an attempt to establish that-
".. . Respondent's policy and practice .. .is (sic) directcd toward
the primary end oi assuring an ndequate 'Native' labour supply in
the Territory, particularly in its '\Vhitel Police Zone. . . subject
always to the condition that . .. 'There is no place for him [i.e.,
"the Rantu"] in the European community above the level of certain
foms of labour' 5".
Secondly, Applicants say that " .. . Respondent's frequent references
to practices in other African States. .. are whollÿ irrelevant to the
present proceedings . . . " 6.
Nes~erthelcss one fin& in the Keply lengthy parts devotcd aImost
excliisi~~el!GyA++licants to practices in other African States 7.
Thirdly, although apparently not prepared to defend the reliability and
accuracy of United Xstions reports and resolutions Applicants never-
theless submit thnt such reports and resolutions-
II,p. 3S3. Vide also ilp. 457.461,47G and 457.
Vide, e.g.. IVp. 313 and p.443, footnote 6.
Vid~ paras. 4-6,supra.
IV, p. 260. Vide paras.6 and S. szcprri.
Ibid..p. 272. Vide para. 9 (c),siipva.
Vbid., p. 364. Vide para. 2 1supra.
' Ibid.,pp. 398.403. 426-430 and 451-457; vide para. 23, supvu and footnote 1,
p. 11s.
Vide para. 19,sttpuu.11s SOUTH WEST AFKIC.4
". . . are highly relevant to the Court's judicial function in adjudging
the legality of Respondent's administration of the Territory, and
are entitled to great weight and respect as authority thereon l".
To summarize, Applicants ask this Court to determine an issue of
fact bv-
(a) i&ioring al1 evidence tendered by Reçpondeiit in respect of the
snid issue ;
(b) giving corisideration solcly to the evidencc teiidered by Applicants;
and
(c) giving effect to the reports and resolutions of a political body
which (apart from an- other criticism) adrnittedly has not attempted
or Iiad an opportunity for a judicial enquiry into the facts.
In short, Applicants ask this Court for a complete abdication of its
judicial functions.
l IV,p. 059. NO wonder then that Applicants' relerence to practices the other
African States is also confined to the perspec"as vicwcd by theljnitedListions".
Videcaption at IV, l'p. 39842G and 451. Section B
APPLICANTS' ALLEGEDNORM OF NON-DISCRIMINATION
OR NON-SEPARATZON
I. Keference lias been made to thc two bases on which Applicants
now present their case in support of their Submissions 3 and 4 l. As
indicated, Applicants in regard to the first basis rely on the esisteiice
in the Mandate of a so-called "international human rights norm of non-
discrimination or non-separation" 2. For convenience, Respondent here
repeats the definition of this alleged norm as contained in the Reply :
". . .the terms 'non-discrimination' or 'non-separation' are used in
their prevalent and customary sense: stated negatively, the terms
refer to tlie absence of governmental policies or actions which allot
status, rights, duties, privileges or burdens on the basis of niernber-
ship in a group, class or race rather than on the basis of individual
merit, capacity or potential: stated affirmatively, the terms refer
to governmental policies and actions the objective of which is to
protect equality of opportunity and equal protection ofthe laws to
individual persons as such 2".
If this alleged norm esists as part of the Mandate, it would have the
consequence that Respondent's admitted policieç of differentiation would
constitute a contravention of the Mandate even if the Court were to Iiold
that such policies were intended to enure, and did in fact enure, to the
benefit of the population as a whole 3.Consequently the soleissue between
the Parties on this aspect of the case is a legal one, viz., whether or not
the Alandatc contains such a norni.
2. Although, as noted, this norm is on occasion said by Applicants
to underlie their whole case regarding alleged violations of Article 2,
paragraph 2, of the Mandate 4,iinevertheless first reared its head in the
Reply. No reference whatever \vas made to this alleged norm in the
Jlemorials, in which the charges and their development were based on
completely different premises The Iact that this argument is thus
raised as an afterthought doeç not, of course, by itself establish that it
must necessarily be devoid of merit. Conscquently Respondent will, inthe
succeeding paragraphs, examineApplicants' "norm of non-discrimination
or non-separation" in order to determine wliat, ifany, validity their
contention in that regard may be said to have.
3. Applicarits' Submissions 3 and 4, with whicli the present part of
the Kejoinder is concerned, allege certain violations of Article 2, para-
graph 2, of the Mandate. If the "norrn of non-discrimination or non-
separation" were to be relevant at al1to thiç subject, it would accordingly
have to satisfy both the follo~iringbasic requirernents, viz.,
l Vide sec.A, para. IO,supra.
IV,p. 493.
Vade sec A, para.S. strpra.
' Ibid.,para.9, supra.
Ibid., paras2-8,supra.120 SOUTH IYEST AFRICA
(a) it would have to be a norm of a legal nature, Le., it would have to
lay down an obligation legally binding on Respondent in inter-
national law; and
(b) it u~ouldhave to be embodied in the provisions of Article 2, para-
graph 2, of the Mandate.
Any norm which fails to cornply irith both the above requireinents cannot
be successfullyinvoked by Applicants in the present proceedings.
That the norm must be a legal one, is obvious. Inthe words of Rosenne,
this Court ". .. is a court of justice and not of ethics or morals or of
political expediency. Its function isto 'declare the law' " l.
But equally important is the requirement that no suggested legal norm
can be relied upon in the present proceedings unless it is contained in
Article 2 of the Mandate. This requirement flows not onlp frorn the
nature of the charges in fact made by Applicants (i.e., their Submissionç
3 and 4 referred to above), but also from the wording of tlie compro-
missory clause within which al1their cornplaints must fall in order to be
justiciable, and which provides for compulsory jurisdiction only in
respect of dispiites ". ..relating to the interpretation or the application
ofthe provisions of the Jlandate" 2.
4. Applicants appear to recognize the necessity for satisfying the
requirernents set out in the preceding paragraph. Indeed, their tvhole
case under this head rests on the proposition that Article 2, paragraph 2,
of the Mandate is to be interpreted as containing, or heing siihject to,
this norm.
Thus they say:
"The existence and virtually universal acceptance of the norm of
non-discrimination or non-separation . ..gives [sic] a concrete and
objective content to Article 2, paragraph 2, of the Mandate 3."
(Italics added.)
The "sources" which "comprise the generally accepted norm" are
said to ". .. impart specific content and objective meaning to Article 2,
paragraph 2, of the Mandate .. ." 3. (ItaIics added.) Applicants siibmit
that-
". . .byemderfakinga legal commitment to promote the welfare of the
inhabitants of South \ITest Africa 'to the utrnost', Kespondent laas
obligaled itself, at the very least, to camp out ... the .. .minimum
basic norm of non-discrimination ... 4".(Italics added.)
The method employed by Applicants in seeking to establish the
existence of the norm is described by them as "applying current standards
in inlerPreling obligations, such as those embodied in the Mandate" 5.
(Italics added.)
As will be demonstrated in the succeeding paragraphs, interpretation
of the Mandate does not produce the result contended for by Applicants,
butthe very reverse thereof.
5. In regard to the concept "interpretation", reference rnay be made
Rosenne, S., The Interitafional Couof Justice (1957)p. 62,
2 Art 7 ofthe Mandate for Gerrnan South-\\lesAfrica.
IV,p. 493.
' Ibid.. p.51I.
Ibid..p. 5r3. Viderilsol'p.514 and 516. REJOINDER OF SOUTH AFRICA 121
to the following pronouncements of erninent former Members of this
Court :
"It is tIie intention of the authors of the legal rule in question-
whether it be a contract, a treaty, or a statufe-which is the starting-
point and the goal of all interpretation. Itis the duty of the judge to
resort to al1 available means-including rules of construction-to
discover the intention of the parties .. . l"
and-
"There is, however, a principle of international law which is truly
universal. It is given equal recognition in Lima and in London, i~i
Bogotaand in Belgrade, in Rio and in Ronie 2.It is the principle that,
in mattcrs of treaty interpretation, the intention of the parties must
prevail 3."
6. The intention which is enlbodied in a dacument by its author is a
fact which existed at a particular point of time, naniely when the docu-
ment was drawn up or executed: at other times the author's intention
may or may not have beeil the same. Since it is the intention (real or
supposed) as embodiedin the document, which must be ascertained for
the purpose of interpretation, it follows as a matter of logic that the
document must be interpreted to bear the meaning (and thus express the
intention of its author) which itwould have borne as ut th stage of its
execution. This rule (called the Principle of Conternporaneity) has been
defined as lollows:
"The terms of a treaty must be interpreted according to the
rneaning which they possessed, or which would have been attributed
to them, and in the light of current linguistic usage, at the time
when thetreaty was originally conciuded '."
The learned author of the above passage points out that the Principle of
Contemporaneity in tlie interpretation of treaties is really a particular
application of a wider doctrine (the doctrine of inter-temporal law) which
pertains to cases where tlie rights of States depend on or derive froni a
legal situation which existed at some time in the past, or on a treaty
concluded at some comparativelyremote date 5.The effect of thisdoctrine
is stated as follows :
"It can now be regarded as an established principle of internation-
al law that insuch cases the situation in question must be appraised,
and the treaty interpreted, in the light of the rules of international
law as they existed at the time, and not as they exist today. In other
Lauterpacht, FI." ,Restrictive interpretatioand the I'rinciple of Effectiveness
in the Interpretation of Treaties", B.Y.B.I.L., Vol. XXVI(ig49)pp. 48-85 atp. 83.
Sed quaerf whether in Alonrovia and in Addis Ababa-vide para.29, inlra.
Asylwm,Judgmsnt, I.C.J. Reports 1950.p.266 at p.320. per Judge Rerid. For a
number of further staternents to the sime effect by judges of this Court and the
Permanent Court, as well as by recognized scholarly authorities on international
law, reference may be made to pp 21-23of the Oral Proceedingson the PreIiminary
Objections herein.
' Fitzrnaurice. Sir Gerald, "The Law and Procedure of the International Court of
Justice, 1951-1954: Treaty Interpretation and other Treaty I'oints", B.Y.B.I.L.,
Vol. XXXilI (1957). PP.203-293 êt P. 212.
ibid. p.225 and Fitzmaurice, Sir Gerald,"The Law and I'rocedure of the Inter-
national Court of Justice.1951-1954: General Principles and Sources of Law",
B.Y.B.T.L., Vol. XXS (1r)s-jpp. 1-70 at p. 5.122 SOUTH \VEST AFRICA
words, it is not permissible to import into the legal evaluation of a
previously esistingsituation, or of an old treaty, doctrines of modern
law tl-iat did not esist or were not acceyted at the time, and only
reçulted from the subsequent development or evolution of interna-
tional Inw l." (Footnotesomitted.)
The practicnl importance of this rule in interpreting relatively old
treaties, is exprcssed as follows:
"Not to take account of contemporary practice and circumstances,
and to interpret such treaties according to modern concepts, ~vould
often amount to importing into them provisions they never really
contained, and imposing on the parties obligatio~is they never
actually assumed 2.''
The Principle of Contemporaneity is applied by this Court. Thus, in
the Moroccocase, it was said:
"The Treaty of 1S36 replaced an earlier treaty between the
United States and 3forocco which \vas concluded in 1787. The two
treaties were substantially identical in terms and Articles 20 and ar
are the same in both. .4ccordingly, in construing the provisions of
Article 20-and, in particular, the expression 'shall have any dispute
with each other'-it isrzecessu7ytu Lakeidu accoztntthe m~aningof thc
word 'dispztte'at the times when the two t~eaties wevc concluded 3."
(Italics added.)
In the Minquier case, Judge Carneiro stated:
"1 do not regard the Treaty of Paris as a treaty of frontiers. Todo
so would bc to fa11into the very error which we have been ivarned
against: an instrttntent mztsf not be appraised in the liglzt of concepts
which nre ttocontemporaneouswith it '."(Italics added.)
Biorerecently the Court saidthat-
". . . the vaiidity of a treaty concluded as long ago as the Iast
quarter of the eighteenth century ...should not be judged upon the
basis of practices and procedures ~vhichhave since developed only
gradually 5".
And in his dissenting opinion in tlie Barcelona Traclion case, Judge
Armand-Ugon referred to-
". .. two elementary rules of international Iaw, namely that con-
cerning the interpretation of clear texts a~id tliat concerning the
'historiçal' interpretation of treaties according to the meaning they
had at the time when they were concluded . .. 6".
' Fitzmaurice, Sir Gerald, "The Law and Procedure ofthe InternationaCoud of
Justice,iqgr-ig54 :eneral Principles and Sources Law", B. Y.B.I.L., Vol. SIix
(1963).pp. 1-70 at p.5.
Fitzmaurice. Sir Gerald, "The Law and Procedure of the International Court of
justice, 1951-1954:Treaty lnterpretation and other Treaty l'oints",B.Y.B.I.L.,
Vol. >;XXIII (1957) pp.203-293 at p. 226.
RigSls of~t'afionaof IheliriileStates of Amerécain rlforocco.Judgmeiil. 1.C.J.
Reports 1952,p. 176 atp. 189.
' fiIa?zquiersand Ecrehos.Judgrnent, I.C.J. Reports 19p. 47at p. 91.
Right of Passage over India* Terrifory, hferits, Judgritent. 1.C.J. Reports 1960.
p. 6 atp. 37.
Barcelo~zaTraction, I.ighl and Power Company.LirriitcPvelintittaObjecfions,
judgment, 1.C.J.Hepovls rg64, p6 at p.140. REJOlSUER OP SOUTH AFRlCA 123
7. Tlie above principles in essence do no more than emphasize certain
considerations of ordinary logic in the applicatio~i of the fundamental
principle of consent as the essential condition for creating international
treaty obligations. In the light of their significance, Respondent will,
in the nest paragraplis, consider whetlier any norm as contendcd for by
r-lpplicants Irascontairied in Article z of the Mandate as at the date of
its esecution, and, if not, whether there was aiil' subsequent insertion of
such norm into the Article. At a later stage attention will be given to
Applicantç' contentions which appear to confiict tvith the above principles
of interpretation l.
S. The States engaged in settling the issues arising from the First
iirorld IVar were imbued with a philosophy \\,hich placed more ernphasis
on the rights of national groups to self-realization than has been prcvalent
in certain spheres of the international scene in more recent times, when
a right on the part of a majority to impose its values on a11minority
groups within a more-or-less arbitrarily defined territory is often accepted
as inevitahle, ifnot indeed desirable. Immediately after the First World
War itwas, liowever, completely contrary to the spirit of the times to
sanction any measures directed at destroying national or cultural groups
by their force~labsorption into larger or stronger groups. This emerges
clearly, inter alia, from some of the pronouncements of President \Vilson.
In his celebrated Fourteen Points, he included the following aims:
"A readjustment of the frontiers of Italy 'along clearly recogniz-
able lines of nationality' (Point 9). 'The freest opportunity of auto-
nomousdevdopment to the $eoples of Austria-Hungarÿ, which it was
not intended to destroy' (Point 10) ... 'undoubted security of life
and an absolutely unmoIested opportunity of autonomous devel-
opment' to other nalionalities now uiider Turltish rule ... (Point
12) ... 'A free, open-minded, and absolutely impartial adjustment
of al1 colonial claims .. . the interests of the pofiulations concerned
must have equal weight with the equitable clairns of the Government
whose title is to be determined' (Point 5) 2."(Italics added.)
These principles were summanzed by him as follows:
"An evident principle mns througfi [the Fourteen Points] . . . It is
the principle of justice to al1peoples and nalionalities, and their right
to live on. equal terms of. liberty and safety with one anotlier,
whether they be strong or weak 3." (Italicsadded.)
A propos of the above passages, it may in passing be noted tkat the
word "peoples" means "nations" or "races" and not, as Applicants aver,
"... the individual inhabitants comprising the popzclation"
And on II February 1918 President WiIson laid down four principles
as essential to a permanent peace, the fourth of which reads:
"Al] well-defined national elements shall be accorded the utmost
satisfaction that can be accorded them without introducing new or
l Vide paras. 27-35i~rfra.
Temperley, H. W. V., A Hisloryofthe Peace ConferenceofParis (~gzo)V,ol.1.
P. 193-
Ibid.p,, 399.
' Vide Onions, C. T. (Ed.), ShortcrOxford English Dictiomzry, 3rd ed. (1959).
p. 1468.
' IV,p. 275.144 SOUTH WEST AFRICA
perpetuating old elements of discord aiid aritagonism l." (Italics
added.)
g. The principles mentioned in the previous paragraph uiiderlay much
of the work of the Peace Conference. They resulted in the splitting up of
the empires of the defeated Central Powers (Germany, Auçtria-Hungary
and the Ottoman Empire) into a nurnber of autonomous States inhabited
in the main by people of one ilationality only. The creation of purely
national States was not, liowever, iilways feasible, with the consequence
that most of the new States or redelimited defeated powers contained
minorities of foreign extraction. The solution adopted with regard to
these minorities was, in keeping with the tirnes, not to encourage their
assimilation with the majority, but rather to protect th~i~existence as
separate groups. This then was the background to the large nurnber of
minorities provisions which were created in the ycars after the First
IVorld \Var. Apart from protecting the individual mernbers of minorities
against oppression or unfair discrimination, the minorities provisions also
maintained the rights of members in regard to matters such as the use of
their language, the establishment of charitable, religious, social and
educational institutions * and the provision of facilities by the State.
The provisions regarding the latter aspect have been sunimarized as
follows:
"In any town or district where a considerable number of a lin-
guistic minority was resident, adequate facilities were to be provided
by the State to ensure that in primary schools, instruction should be
given ta the children of such nationals through the medium of their
own language. In addition provisions, were included for the equit-
able appropriation of public funds by the state, municipality or
other budget, for the educational, religious or charitable institutions
of minorities in towns and districts where a considerabte proportion
ofthe residents belonged to racial, religious or linguisticminorities 2."
In general, it has been said that the minorities provisions ensured for
rninorities ". . . suitable means for the preservation of their racial
peculiarities, their traditions and their national characteristicç" j.
IO. It isobvious that the principle of equality betiveen majority groups
and minoritygroups necessarily involved a digerenlialion in the treatment
of these respective groups, or of their individual members, on the very
basis oJ membership in such a grozrfi.In the words of the Permanent
Court :
". .. equality in fact may involve the necessity of different treatment
in order to attain a result which establishes an equilibrium between
different situations.
It is easy to imagine cases in which equality of treatment of tlie
majority and of the minority, whose situationaiid requirements are
different, would result in inequality in fact . . 4"
It is interesting to note the opinion of Sir Hersch Lauterpacht on the
l Temperiey. op. cil., p195.
GanjiM , ., Inlernalioiial ProlectioHunran Rights (1962).p.47.
Minority Schools inAlbania, Advisory Opinion, 1935, P.C.I.J. Scries A/BNo.
64. P.17
Ibid., p. 19. REJOIXDER OF SOUTH AFRICA 125
change in philosophy that Ilas occurred in some quarters in regard to the
protection of the nationality rights of minorities. He says:
"It was a sign of political and moral retrogression in international
relations after the Second World War that that aspect of the pro-
tection of rninorities received less attention than after the termi-
nation of the First World War. That retrogression found expression,
among others, in the fact that even in the Universal Declaration of
Human Rights-a document which did not impose Iegal duties
upon any State-no room was found for the positive recognition of
what must be regarded as a basic human right of the members of
national minorities l."
II. The principle of protecting the identity of national groups, with
differential treatment of various groups where their "situation and
requirements are different" 2,was also basic to the mandate system, in
which it came to be combined with the further vital principle of trustee-
ship or guardianship for the "peoples" and "communities" concerned,
which were considered "not yet able to stand by themselves under the
strenuous conditions of the modern world" 3.Thus Article 22 (3} of the
Covenant provided that the various mandates should differ, inter dia,
"according to the stage of development of the people". And the same
approach enierges from the specific provisions relative to and contained
in thevarious mandates.
In the case of the A Mandates, wliere the "communities" concerned
had "reached a stage of development where their existence as independent
nations [could] be provisionally recognized" 4, the protection of the
vanous national groups within the confines of one mandated territory
took the form of rneasures, sirnilar to the minarities provisions, regarding
the language, educational, religious and social rights of sucli groups 5.
In the B and C Mandates, the stage of development of the Native
peoples was such as to require for them certain elementary precautions
which were not considered necessary for the more advanced inhabitants
of the territories concerned. Reference waç made in the Counter-Mernoriai
to specific instances in the Mandates where speclal meaçures applying
only to theNatives were stipulated, e.g., in regard to intoxicating liquor,
militarization, Native land, etc. Reference was also made to comments
by the Permanent Mandates Commission and some of its mernbers
showing their appreciation of the necessily for diflcrentiating between
various groups '.Thatthese comments represented an expression of the
Lauterpacht, H., I?rferaational Law and Human Righrs (rg45), p. 353,way of
contraçt. it may be instructivto note that Pope John XXllI. in his Encyclical
Letter Paccrn in Terris.1963. under the hertding "The treatment of minorities"
(pp. 25-26),stressed the "demands of justice" in the treatrnenof "these lesser
peoples'', particularly asregards bettermcntconcern"their language, the develop-
ment of their naturagifts, thcir ancestral custoandstheir accornptishmentsand
endeavours in the economic order", whilatthe same time atlmonishing such groups
againstan inclination "to exalt beyond due rneasure anything proper to their own
people".
Minorily Sclrools in rllbania case. pIO..supra.
Art.22 of the Cavenant of the League of Xations.
Ibid., Art22 (4).
The Mandutes System-Origin-Principlcs-Appli (c945.opp. 28-32.
* 11,P.416 (para. 39).
' Ibid. ,p 417-418.126 SOUTH \\'ESTAFRICA
basic approacli of the Commission toïvards the administration of Kative
groups, appears froni the questionnaire drawn up bp them in 1921 to
assiçt Alandatories in preparing their annual reports. Article SI of this
queçtionnairc rcad as follows:
"What are, generally speaking, the rneasures adopted to ensure
the moral, social and material welfare of the ~zatives?(Measures to
maintain the interests, rights and customs of tlze natives, their
participation in public service, native tribunals, etc.) l." (Italics
added.)
It was in the nature of things impossible to adopt appropriate "{mlea-
sures to maintain the interests, rights and customs of the natives" in
South West Africa (and in many other mandated territories) without
differentiating hetween the widely divergent groups that inhabited the
Territory.
12. It also appears from the factssurrounding the grant of the Mandate
to Kespondent that the authors of the Mandate miist have cxpected the
application of a policy of differentiation in South \t7est Africa As pointed
out in the Counter-hlemorial 2, it was generally known that South Africa
applied a policy of differential treatment in respect of the various popu-
lation groups within its own borderç, and that similar prohlerns in South
West Africn would probably give rise to similar policies there. Indeed,
General Smuts, iii an address to the Peace Conference, stressed the
desirability of such a course 3.This fact did not, however, deter the
Powers concerned from granting the Mandate to Respondent. On the
contrary, as has been noted 4,the desirability of applying Respondent's
Kative policy to the Temtory was one of the factors \vliich influenced at
least some of the delegates to form the opinion that South \iJest Africa
could "be best administered" under the laws of South Africa as an integral
portion of its territory In this regard, reference has heen made6to
utterances by Dr. G. L. Beer, the alternate United States meniber of the
Commission on Alandates, and at that time chief of the colonial division
of the .4rnerican delegation at the Conference, as well as by President
l17ilsonhimself.
13. In accordance with the generaily prevalcnt philosophy of main-
taining tlie identity of separate national, linguistic and cultural g~oups,
and of guardianship and trusteeship of less developed peoples, other
Mandatories :ils0 applied policies involving various forrns and degrees of
differentiation. 'rhis may be seen for instance in the policy of indirect
rule, which has been defined as follows:
"It insists that, if the native authorities are to become not onIy a
part of the machinel of government but a living part of it, the
political energies and ability of the people rnust be directed to the
preservation and development of their own institutions; the native
authority selected for recognition by government must therefore be
that which according to tribal tradition and usage has in the past
The iI.la?rdatesSystei~z-O~igin-Pri?zc6flles-sIp(p1l 94c).lpo?z.
II,pp 414-417.
Ibid.,p. 415.
+Ibid.,p. 416.
VideArt. 22 (6) of thCorenant of the League of Nations.
II, p.416 (para. 35). REJOIBDER OF SOUTH AFKICA 127
regulated tlic affairs of each unit of native society; it is equally
important that it should be that which the people of to-day are
willing to recognize and obey. But the objective is not merely the
utilization of native authorities as instruments of locaI government ;
native administration is conceived as a ineans of trying 'to graft our
higher ci\-ilization upon the soundly rooted native stock . .. mould-
ing itand establishing it into lines consonant with modern ideas and
higher standards' '."
It will be apparent that this policy of indirect rule necessarily involved
differentiation regarding the various Native groups within a territory,
interse as well as in relation to the more developed groups such as Euro-
pans or Asians. As noted in the Counter-hlcmorial 2, one finds that
indirect rule was practised in each of the three Hritisch mandated terri-
tories, Tanganyika, British Cameroons, and British Togolarid. And,
although not by that name, the principles underlying the policy were
applied also in each of the other three African mandated territories,
Ruanda-Urundi, French Cameroons and French Togoland. Similarlp the
policy found application, under its name or by way of its underlying
principles, in a large number of oiher territories. In keeping with this
approach, there was up to the Second \lTorld War no participation by
Africans in the central legislaiive and executive organs of any of the
rnandated territories, as was also shown in the Counter-~Iemorial 3.
14. In pursuance of, or in addition to, the yolicy and principles of
iridirect rule, diffcrentiation as between members of various populat'ion
groups was practised in other mandated territories (andother territories)
iii Africain a spirit of guardianship, trusteeship and paternalism, also in
regard to legal systems. land tenure, residential facilities, aîpccts of
economic policy, control of population movement, ediication, and other
aspects ofgovernment 4.
Ij. To summarize, the mandate system, by its vcry terrns as well as its
underlying philosophy, according tu the contemplation of its authors, the
policy of the Permanent Mandates Commission, and the practical applica-
tion of the system by Mandatory Powers, permitted and indeed required
differentiation arnong various ethnic, linguistic or cultural groups, and,
consequently, among their individual rnembers, on the very basis of
membership in siich agroup,
16. In their Reply Applicants do not attenipt to deal with Respond-
ent's Submissions summarized in the preceding paragraph, or with the
factual and other material adduced in the Counter-Mernorial in support
thereof. They do indcecl have a section headecl "League of Nations
Period" 5,but the aspects referred to there fall very far short of establish-
ing aiiy norm of non-separation. Indeed, their references to questions Pr
coniments by the Permanent Mandates Commiçsion or some of its
members, in so far as they are relevant at all, demonstrate that tlie
Coinmission \vas concerned to satisfy itself thnt there mas no linfuir
Lord Hailey, -4n.4/ricanSurvey (rg38), p432, as quotedin II,p.436.
* Ibid., p.436.
+ Ibid. ,. 433.
Vide II. p436 (para. IO)and. e.g.. 11pp.86-Sg,201-209, 218-zigand 257-266.
374-375. This featurc also appears clearly from the annual reports submitted by
BIandatories to thePermanent Mandates Commission.
"V, PP 493-497.128 SOUTH WEST dFRICX
discrirninatiottagainst Natives, but that digerentiatiot~ was regarded as
inevitable and desirable.
For instance, the discussion duriiig tlie Third Session of the Permanent
Nandates Commission wliich is referred to in the Reply l,sho~vsthat the
members of the Commission were not opposed to the principle of the
separation between the races, but were concerned to determirle wl~ether
Respondent's particular policy was advantageous to the Native popu-
lation. Applicants quote only the questions asked by members of the
Commissionbut not the answers given thereto, nor the opinion finally7
expressed by the Commission. That the Conimission was satisfied with
the replies given to the questions put by it and quoted by Applicants,
appears from the special obse~vations made by the Commission on the
Administration of South ifTestAfrica at the end of the same session. The
Commission expressed the opinion that-
". . . the soundness of the views which have prompted tlie Adminis-
tration to adopt a systern of segregation of natives in reserves will
become increasingly apparent ifthere is no douht that, in tlie future,
the Administration will have at jts disposa1 sufficient fertile laiid for
the growing needs of the native population and that the reserves
wiIl be enlarged in proportion to the progressive increase in the
population 2".
The same applies to ather instances of discussions in the Perinanent
Nandates Commission referred to by Applicants 3. In no instance was
there any objection to or questioning of the principle of differentiation,
but measures and policies were scrutinized with a view to determining
their effect on the interests of the Native population. Respondent may
add that the expression "discriminatory and repressive labor legislati~ri"~
is Applicants' own, and was not used by the Commission or any of its
members.
'Thegeneral import of the minorities provisions, which are nlso relied
upon by Applicants has been dealt with above 5.In particular it has
been noted that these provisions were concerned with protecting the
group identity of minorities, and that this necessarily involved a nicasure
of differentiation between the majority and minority groups. Article 6
of the .i\lhanian agreement fiwas typical of provisions made in this
regard 7.
FinaII!:. the DecIaration of International Rights of Jlan of the Institut
de Droit International was, as stated by an authority quoted by Appli-
cants, ". . . open . . . to the objection that it has no juridical value . . ."
and the same may be said of other matters referred to hy Applicants ',
thus ohviating the necessity for enquiring whether they in truth involved
any norm or principie of "non-separation" as defined by Applicants. hs
has been shown, such a norm was certainly not subscribed to, or applied,
in the mandate system.
lIV, p.495.
* P.Al.C.,?\,linIV,p. 154. Vide 11.p418.
IV, p.495, passage covered by footnote3-6.
' Ibid., pp. 495-496.
Vide paras.9-10, stcpra.
IV, p.496.
' Videpara. g, supva.
IV. P. 197. KEJOlSDER OF SOUTH AFRiCA 129
Applicants indeed do not suggest that bv tlie end of the League of
Nations period tlie a~serted "norm of non-discriniinaiion or non-separa-
tion" fiad already inhered in the Mandate,. On the contrary, they concede
that the features referred to by lhem were "of inszibslantial jundical
value", and contend merely that they were "forerunnersof" (or "fore-
shadowed") the "narm of oficial non-discrimination" l.(Italics added.)
17. The clear, and apparently admitted, position then'is that at al1
times up to the end of the League of Nations period, the Mandate did not
contain, and was not subject to, any "norm of non-discrimination or
non-separatio~i". If the Mandate were nowTto be held to be subject to
such a norm, this situation could have come about only bythe subsequent
insertion of sornething not originally included in it: in other words, by
some process of amendment.
The force of this consideration is rendered the more apparent by the
featiirel demonstrated above, that the Mandate actually fivescribed a
policy of differentiation in certain respects, and specifically contemfilated
it as desirable or at least permissible in others *.In truth, therefore, the
introduction of the alleged norm of non-discrimination or non-separation
would involve not only the addition of something not initially included,
but the reversal of principles and explicit provisions originally contained,
in the Mandate-in other words, an extremely far-reaching amendment.
16. In order to establish any amendment to the Mandate, Applicants
would have to point to some act which would satisfy the follouing two
basic requirements:
(a) It must be an act having legal consequences for Respondent, i.e.,
altering Respondent's legal rights andlor duties. This necessaniy
involves that IZespondent's consent to such act must be proved.
In the \vords of Judge Read :
"It is a principle of international law that the parties to a multi-
Iateral treaty, regardless of their number or importance, cannot
prejudice the legal rights of other States 3."
(6) It is not, however, sufficient for the act to have such legal conse-
quences. It miat in addition affect Respondent's obligations mder
the Jiandate. The basic reasons for this requirement have been
referred to above 4. This subject will be considered in more detail
at a later stage 5.
19. The material adduced by Applicants for the purpose of establishing
tlie existence of the alleged norm of "non-discrimination or non-separa-
tion" mas not avowedly directed at proving an arnendment to the
aiandate. As noted above 6,Applicants purport to rely on an "interpre-
tation" of the alandate, and not an amendment thereof. Applicants have
consequently also failed to present any argument with a view to showing
that the reqiiirements set out in the previous paragraph have been
satisfied. Neverthetess, inasmuch as amenclment offers the only metbod
'IV> p.497
Vide paras. i -15s,upra.
I~ternational StatuofSouth West Africca,Advisory Opinion, I.C.J. Reports r950.
p. 128 atp. 165.
+ Vide para. 3, supra.
Vide para. 23,iitfr~.
Videpara. 4.supra.130 SOUTH WEST AFRIC.4
whereby the content of Keçpondent's obligation under the alaildate
could conceivably have been altered or added to, Respondent will
consider in the nest succeeding paragraphs w-hether such material could
have had any effect in that regard, deferring treatment of Applicants'
"interpretation" argument to a later stage l.
20. It \vil1be convenient to conimence consideration of the in?terial
adduced by Applicants by eliminating the items which are clearl!; irrele-
vant, whether (a) because they do not purport to have legal forceat all,
or (b) because thev are by their own terms applicable only to territories
other than South West Africa, or (c) liecause the? are not binding on
liespondent by reason of lack of consent on its part.
One or more of these considerations npply tothe following items:
(i)The Universal Declaration of Human Rights (no consent by
Kespondent and, in any event, did not create legal obligations) ;
(only a draft);
(ii) Draft Declaration of Rights and lluties of States
(iii) Trust Territories Agreements3 (not applicable to South \S'est
Africa) ;
(iv)Resolutions of the General Assembly 4 (did not create legal obliga-
tions and for the most part not applicable to South iVest Africa) ;
(v) Resolutions of the Security Council (apart from anything else,
not applicable to South ilTest Africa);
(vi) Human Rights Covenants (only drafts);
(vii) United Nations Declaration on the Elimination of al1 forrns of
Racial Discrimination 7(did not create legal obligations) ;
(viii) International Convention on the Elimination of al1 Forms of
Racial Discrimination (only a draft) ;
(ix)International Labour Organisation Conventions (not ratified hi
Respondent) ;
(x) Regional Treaties and Declnrations 10(not applicable to South IVest
Africal.
Inaçmuch as al1the above items are hy their very nature incapable of
affecting Respondent's rights or obligations in respect of South West
Africa, Respondent will not unriecessarily devote time or space to con-
sidering whether they do indeed possess the content ascribed to them bu
Applicants.
.21. After-eliminating the items set.out in the.previous paragraph,.there
remain for consideration only two legal instruments, to each of which
Respondent was a party,and neither of which is in terms inapplicable to
South West Africa. These instruments are:
(i) The United Nations Charter and
Videparas. 27-35infra.
=lV, p. 50r.
Ibid., pp.501-502.
+Ibid.. pp.502-303.
Ibid., pp.503-504.
Ibid.. pp. 504-505
Ibid. pp 505-507-
Ibid., pp 507-508.
* Ibid., pp.508-509.
'OIb2d.. pp. 509-510.
" Ibid.. pp.497-501. REJOINDER OF SOUTH AFRICd
(ii) The InternationaI Labour Organisation Constitution I.
For convcnience, they will be dealt with separately.
The UnitedNations Chartev
22. Applicants say
"The legal obligation of Member States not to discnminate or
distinguish on the basis of membership in a group or race (whatever
specific human right or freedorn may be involvedj is set out in
Article 56 of the Charter =."
Article 56 reads:
"Al1 Members pledge tliemselves to take joint and separate action
in CO-operation ivith the Organisation for the achievement of the
purposes set forth in Article55.''
Article 5j sets forth the purposes to be pursued by the United Nations,
amongst which i~included the promotion of:
". . . universal respect for,and observance of, human rights and
fundamental freedoms for nll without distinction as to race, sex,
language,or religion".
Respondent is as desirous as any other Member of the United Nations
to achieve the above-quoted purpose, but does not agree with the
meaning attached to the provision by Applicants. In Respondent's
submission it would be entirely anomalous to suggest that any differeiz-
tiution (as distinct from unfair discrimination) between races, seses,
language groups or religious denominations would involve conflict or
inconsistency with the said Article. Thus, on Applicants' argument, a
Alember of the United Nations would not be entitled to provide special
protection or special public conveniences for women, or would not bc
entitled to grant çeparate public holidays for different religious commu-
nities on their respective reIigious days, or to establish different public
schools for various language groups or even for the two sexes. In the
words of Sir Hersch Lauterpacht (comrnenting on a prolision in a
proposed International Bill of the Rights of Man}-
". ..it mustbebornein mind that 'equal treatment in ail respects'. ..
does not imply identical treatment ... A purely mechanical absence
of differentiationmay result in inequality and injustice 3."
And reference waç made above to a çimiiar pronouncement of the
Permanent Court 4.A fortiori the concepts of "universal respect for" and
"observance of" the rights and freedoms spoken of in Article j5 of the
Charter, for everybody \vithout esception, cannot imply a need for an
absolute, mcchanical absence of differentiation.
Itissubmitted. therefore, that the Charter did not purport to establish
any obligation not to differentiate between members of various groups,
but was concerned merely to prevent oppression and unfair discrirni-
nation. In so far as Applicants attempt to estnblisft the proposition that
any differentiation on the hasis of membersliip in a group (irrespective of
whether such differentiation was introduced for the benefit of the group
IV, p.508.
Ibid.,p.498.
3 Lauterpacht, H.. da Inlernnlion~l Bilof the RighlO/ JIan (1945).p. "6.
' Vide para. IO,supra.=32 SOUTH WEST AFKICA
concerned) is contrary to the Mandate, the Charter, therefore, cannot
assist them l.
23. But there is a further reason why Articles 55 and 56 of thc Charter
cannot assist Applicants' contentions. As noted above 2,the present pro-
ceedings are brought, and can only be brought, in terms ol Article 7 of
the Mandate, rvhich bestows jurisdiction only in respect of disputes
". ..relating to tlie interpretation or application of the provisions of the
Alandate".
The consequenceof this isthat it would not be competent for Applicants
to allege and atternpt to establish a breach of the Charter-they would
have to go further and show that in some way the terrns oi the Charter
fa11within the description "the provisions of the Mandate". There is
clearly nothirig in the Charter whicli suggests that it purported or was
intended to amend, or incorporate something in, the Mandate. On the
contrary, tliCharter was by itsvery nature a general instrument creating
a new international institution and imposing new obligations on its
hlernbers. In this regard, reference may be made to Article 103 of the
Charter, which isconsidered below 3.
24. In another part of the Reply * Applicants refer also to Article 73
of the Charter concerning non-self-governing territories. They do not,
however, suggest that the said Article contains any provision or norm
precluding differentiation on the basis of race, colour or ethnic group.
Nor could they seriously make such a suggestion, regard being had to
the contenfç of the Article. On the contrary, rit least the possible need
for such differentiation in particular instances appears to be conternplated
in the Article itself, particularly in paragraphs (a) and (b) thereof, which
require administering authorities to observe "due respect for the culture
of the peoples concerned", and to have regard to "the particular cir-
cumstances of each territory and its fiaoplesand their varying stages of
advancement" 5.(Italics added.) For this reason alone-and quite apart
fromtlie questions whether Article 73 was intended to apply to mandated
territories at all, and, if so, whether it Ras intended to amend any of the
provisions of the relevant mandate instruments-Applicants' arguments
regarding Article 73 need not be considered in the present context.
Further reference will be made to these arguments below, in dealing
with the confiision on Applicants' part regarding "interpretation" of
Article 2 (2)of the Mandate 6.
The Constilulion of the lnternationul LabotrrOrganisatio~z
25. The only part of the Constitution of the I.L.O. which remotely
approaches relevance in the present regard, is a sentence in the Decla-
ration Concerning the Aims and Porposes of the International Labour
Organisation. This sentence reads (in so far as material) :
positive contemplation24of ataleastthetpossible need forCsuchedifferentiatiointes a
particularinstances.
* Videpara. 3, supra.
Videpara. 32,infra.
' IV, pp. 516-518.
' This isindeed a further reason why Art. 55 othe sameCharter could not have
been intended tahave the meaning contended for by Applicant;videpara.22,supra.
Videparas. 30-35 ,nIra. REJOIXDER OF SOUTH AFRIC.4 I33
". ..al1human beings, irrespective of race, creed, or sex, have the
right to pursue both their material well-being and their spiritual
development inconditions of. .. equal opportunity .. . l".
Even by itself, tlie expression "equal opportunity" çould hardly be
read as "identical opportunity". It is a matter of impossibility to pro-
vide anything remotely approaching identical opportunities for matenal
well-being and spiritual development of ail inhabitants of a State-and,
in any event, such identical opportunities would give rise to great
inequality 2.
But the Declaration itself gocs further, and shows an awareness of the
necessity for differential treatment between various groups. Thus it
provides :
"The Conference affirrns tliat the principles set forth in this
Declaration are fullv applicable to al1peoples everywhere and that,
grhile the mnfter of tkeir u&5licafion mtrst be determined with dzre
regard to the stage of socialami economicdevelopment reached by each
peopb, their progressive application to peoples who are stiil depend-
ent, as well as to those who have already achieved self-government,
isa matter of concern to the whole civilised world 3." (Italics added.)
In any event, even if Applicants wcre to be correct in their construction
of the Declaration, it is quite clear that it does not purport, and tuas not
intended, to effect an amendment to the Mandate.
26. For the reasons set out in the preceding paragraphs, Respondent
submits that none of the material relied upon by Applicantseffected any
amendment to the terms of the Mandate. Indeed, Applicants do not rely
on any amendment, but contend that there exists a legal norm which is
to be introduced into the Mandate by a process of "interpretation".
How a provision in an instrument which, when it came into existence,
not only conlemplaledbut also Prescribeddifferentiation between different
racial groups, can now, rvithout amendment, be "interpreted" as pro-
hibithg a11such differentiation, is not comprehensible to Respondent.
Applicants' contention, if taken to its logical conclusion, must have
the efiect that even those provisions of the Mandate which specifically
provided for differential treatment of the population groups, must now
.be regarded either as pro non scripo or as having becorne adapted in
such a manner that they do not involve differential treatment of any of
the population groups. Thus the prohibition against "thc supply of
intoxicating spirits and beverages ta the natives" 4 must now either be
disregarded, so that such spirits and beverages may be supplied to
Natives, or must be regarded as extcnded to al1 groups, so that such
spirits and beverages may not be supplied to Europeans, Natives or
Coloured perçons; and how the interpreter must choose betwveen these
ttvo possibilities.is not explaincd. The position would be the same ~ith
regard to the military clause in Article 4 of the Mandate in so far as it
distinguisheç between the training tvhich is permitted respectively for
Natives and non-h'atives. In this regard it is, hoivever, instructive to
note that Applicants apply their "norm of non-discrimination or non-
separation" only when it suits them. 'l'hus, for example, they interpret
Vide IV, p. 508.
Vide para. 22.supn.
United Xations Treaty SetiesVol. 15 (1g48),p. i12.
+ .art.3 of the Mandate for German South-\Vest Africa.I34 SOUTH \$'EST AFRICA
Article 4 of the Mandate as permitting the training only of Kative troops
and as prohibiting tlie training of non-Xative troops l. Respondent will
dernoiistrate the untenability of such an interpretation of Article 4 in a
later part of this Rejoinder. For the pi-esent Respondent is concerned
solely with demonstrating the inconsistency with which Applicants
apyly their so-cnlled norm, and tlie ailornalies \vltich inhere in tlie coii-
tention tliat such a norm forms part of the Jiandate.
Iriregard to a similar, but more limited contention, Le., that the pro-
visions of the Charter may be invoked tointerpret the Xandate, Respond-
ent said in the Counter-Mernorial :
"'1.0assert, hoivever, that a convention concluded in 1945 can be
used as an aid to ascertain the intentions of the parties to a con-
vention concluded between different states in 1920, is, in Respond-
cnt's submission, so obïriously absurd as not to warrant serioiis
consideration 2."
Applicnnts contest this proposition 3, and have now produced a maçs
of additional material which came into existence subsequent to the grant
of the Mandate, but on which they nevertlieless rely for its "interpreta-
tioii". In tlie process they betrap such confusion of thought regarding
basic concepts of law, that Respondent is compelled to devote somespace
to elementary principles.
27. Respondent has indicated what it understands by the term "inter-
pretatioii" +, and has demonstratcd, with reference to authority, that
the meaning of a document rernains immutable (save for possible amend-
ment) from creation to extinction 5.
However, and this is where Applicants' confusion sets in, interpretation
is only one of the steps in consideriiig the practical effect of a legal docu-
ment. After having ascertained tlie meaning of a document, it is still
necessary to determine what bearing such meaning has on the factsor
circumstances to which it relates. This process is called application. And
although the meaning of a document never changes, its application to
different circumstances might give rise to widely divergent results. As an
esample one might posit a commercial treaty concluded in 1800 and
granting certainrights in respect of "al1 British colonies and possessions".
Although the meaning or interpretation of the treaty would not have
changed in the years between 1800 and 1964, its application to the facts
would have produced widely different results in, Say, 1800,1900 and 1960.
The distinction between interpretation and application of broadly
forrnulated provisions of the kind under consideration, rnay be further
illustrated by reference to a separate opinion of Sir Percq Spender con-
cerning certain provisions of the United Nations Charter 6.The learned
Judge said:
"Ageneral rule is that rvords used in a treaty shonld be read as
having the meaning they bore therein when it came into existence.
Uut this meaning must be consistent with the purposes sought to
lIV, PP. 553-554and 565-567,
11,p. 395.
VidVide para. 5, supra.
' Videpara. 6.supra.
Certain ExpcnsesO/ the United Nations (Article 17, purayapz.oftheChnrtcr).
Advisovy Opinion. I.C.J. Repo~ls rg6z. p151 at y.182. REJOISDER OF SOUTH AFRtCA 13 5
be achieved. Where, as in the case of the Charter, the purposes are
directed to saving succeeding generations in an indefinite future
froin the scourge of war, to advancing the welfare and dignity of
man, and establishing and rnaintaining peace undcr international
justice for al1 time, the general rule above stated does not mean
that the words in the Charter can only compreliend such situations
and contingencieç and manifestations of subject-matter as were with-
in the rninds of the framers of the Charter ..No comparable human
instrument in 1945 or today could provide against al1 the contin-
gencies that the future shouId hold. Al1 that the framers of the
Charter reasonably could do \vas to set forth the purposes the or-
ganization set up should seek to achieve, establish the organs to
accomplish these purposes and confer upon thcse organs powers in
general terms. Yet these general terms, unfettered by man's in-
capacity to foreteil the Iuturemay be sufficient to meet the thrusts
ofa changing world.
Theltatecreof theaulhorztygranted by theCharter toeachofits organs
doesnot changewith time. The ambitor scofe O/ theauthoritycoltferred
may nonetheless comprehend ever changing circumstances and coe-
ditions and ernbrace,as laistoryunfolds ilselnaei firoblemsand situa-
tionsmhichwerenot and codd not have beenenvisaged when theCharter
cameinto bain:. TheCharter must accordingly be interpreted, whilst
in no way deforming or dislocating its language, so that theauthority
conferred upon the Organization and its various organs may attach
itself tonew and unanticipated situations and events ...Theqaestion
whetheran zcnfov~seeno , r extraordinary, or abnormal developmentor
situation, ormatfer relating theietofnllswithin the authorztyaccorded
to ajty oftheorgansof theOrganizalionfinds ils answer iladischarging
flt essenfialtask O#al1interpretutio7z-ascer theai ninigg of the
relevant Charterprovision in ifs contextThe meaning of the text wiii
be illuminated by the stated purposes to achieve which the terms
of the Charter were drafted l.' (Italics added.)
2s. Applying these elementary principles to the Mandate, one finds
on interpretation that the Mandatory was always obliged to promote the
development of the Territory and its inhabitants 2.This obligation was
immiitably fixcd (saveforpossible amendment) when Respondent assumed
the Mandate. But the nature of the obligation thus interpreted is such
that Respondent muçt necessarily have regard to changed or changing
circumstances in carrying out the said obligation2.In other words, in the
application of the terms of the Mandate to the circumstances of 1960, a
different practicaI effect may be reached than would have resulted from a
similar application in 1920. Failure to adapt to new circumstances rnight
result in a factual set-back or impediment of that which Respondent is
obliged to promote; and this might in a given case conceivably be so
indisputable and obvious as to give rise to an inference of an arbitrary or
malri firiattitudeon the part ofthe Mandatary. Such a conclusion would,
hotvcver, result, not from a changed interpretation of the Mandate, but
from the fact that the Mandate, whenever interpreted, involves a duty
on the Mandatory's part to give consideration to al1 relevant circum- '
l Certain Expenseof the Unifcd Natio(Article 17, paragraphz, of the Charter),
Advisory Opinion, I.C.J. Reports 1962,pp. 186-187.
This isself-evident, videauthoritiquoted by Applicants at IV, pp. 514-5r6.136 SOUTH WEST AFRlCA
stances when dete.~ining policy, as a necessary component of its obliga-
tion to pursue the prescribed objectives in good faith. Amongst the
circumstances to be thus considered, are the general philosophical views
prevalent in the world, and their impact on the inhabitants of the Terri-
tory. Kespondent has demonstrated the consideration which has becn
given to these factors l,and says that it has in no ïvay failed in its duty
in this respect. The issuesin that regard, however, fa11 to be considered
under the second branch of the case, where Applicants allege that Re-
spondcnt's policy is in fact a deliberately oppressive one. For present
purposes it is sufficient to ernphasize that current views, standards or
noms, whether of a moral or even of a legal nature, cannotby any process
of interpretation alter,add to, or Vary Respondent's obligations uiider
the Mandate. For that purpose, amendment would he required.
29. It will be seen that a confusion between the concepts ofinterpreta-
tion and application underlies and invalidates Applicants' whole argu-
ment relating to the topic under discussion. On occasion they seem to
appreciate the diçtinction. Thuç they Say:
"The Mandate instrument sharcs, in common witli al1 typical
charters, constitutions and basic ordinances, generality in formula-
tioland dÿnamic flexibility in a+plicatiom 2.'J(italics added.)
The distinction between fo~mzclata'onand application in this passage
seemç to Respondent to be sound. as also the statement that where
powers and functionç are defined in general terms, the application thereof
would be characterized by "dynamic flexibility" 3.
However, in the very next sentence Applicants Say:
"The obligations created by Article 22 of the Covenant and tlie
Aiandate muçt, accordingly. be co~zstruedin the Iight of current
standards, as determined by contemporary knowledge, conditions
and requirements '." (Italics added.)
And later they refer to the-
". .. néceçsity to interfiret broadly-formulated, constitutional-type
obligations, on the basis of current standards, rather than on the
basis of the presumed 'intentions of the parties'atthe tirne the obliga-
tions were conferred and acceptecl 5".(Italics added.)
The authorities relied upon by them for the proposition regarding
interpvatation do not, however, go beyond showing that the application
of broadly formulated provisions to different circumstances gives rise to
different results. This is illustrated, inter alia, by the quotation from
Brown v. Board of Education in the Reply :
"We must consider public education in the lightof its ficll develop-
ment and its prese~ztplace in American life throughout the Xation.
Only in this way can it be determined if çegregation in public school~
deprives these plaintiffs of the equal protection of the laws +."
This is a self-evident proposition. But the italicized words demonstrate
of which is apparently misunderstood tiy Applicants-videIV, pp. 512-515.ificance
IV, pp. 515-516.
$lndeed. this propositio~i rnight be quoted in support of Respondent's argument
regarding the interpretation of Arti2-vide Part III, sec. C. par20-24, ilafru.
IV,p. 514.
' Ibid., p. 515. REJOISDER OF SOUTH AFRICA I37
clcarly that what may have changed, in the Court's contemplation, çince
the previous ruling on the subject, wcre circumstances concerning"public
education" in Arnerica, i.e., the subject-matter to which the constitu-
tional provision in question was to be npplied, and not the content or
interpretatio~l of the constitutional provision itsglf, requiring "equaI
protection of the laws". Consequently, in accordance with the reaons
set out above, the proposition does not assist Applicants in their attempt
to alter the meaning of Article z of the Mandate.
30. Applicants' confusion between the concepts of interpretation,
application and amendment, is furthcr illustrated by their contention
that Article 2 of the Mandate should be interpreted in the light of Article
73 of the Charter '. At the outset it must be noted in this regard that,
apart from its logical defects, which will be pointed out hereafter, Ap-
plicants' said contention appears prima facie to represent an exercise
in utter futility, in that Applicants do not indicate in what way reference
to Article 73 assists in interpreting Article 2.or what effect reference to
Article 73 has inascribing a rneaning to Article 2. They Say in this regard:
"lt js not necessary, for the purposes of the present Proceedings,
to consider in detail the scopc of Respondent's obligations under
Article 73 of the Charter, inasmuch as Applicants' Submissions do
not allege violatioiis by Respondent ofsuch obligations =."
Consequently Applicants merely associate themselves with a suggestion
by Respondent that the obligations under Article 73 "may be in advance
of what was current thought in 19zo" (italics added) without making
anysubmissions regarding the specific respectsin which, or theextent to
rr9hich,such obligations are alleged to be in advance of what waç current
thought in 1920. It is to be noted, however, that in their attempt to
replace "1920 standards" with undefinecl "Charter (Article 73) stand-,
ards" 2, Applicants are concerned not so much with the Article as
framed, but with the Article read-
". . . in the light of the frequent application and interpretation
[thereot] by United Nations resolutions and actions since the incep-
tion of the Organization 3".(Footnotes omitted.)
In the resuit, the impression is gained that by a spurious attempt t.0
introduce unnarned standards into the Mandate "in ço far as the provi-
sions of ilrticle 73 of the Charter may be in advance of what was current
thought in 1920" 2,Applicants in truth seek to establish some basis of
relevance in the present proceedings for United Nations resoiutions and
actjons regarding non-self-governing territories, which resolutions and
actions were themselves often based on very questionable interpretations
and applications of Article 73. Applicants' argument would then amount
to a contention that questionable interpretations by some States, of a
convention concluded in 1945 amongother States, must be given decisive
weight in interpreting (i.e., ascertaining the intentions of the authors of)
instruments esecuted in rgzo by yet a still different group of States. This
argument is even more palpably absurd than that propounded in the
Memorials with reference to the in eari maferia rule 4.However, since it
Ibid.p. 5I7.grS.
' Ibid.p. 516.
Vide II, p395 and IV,p. 512. ~13~ SOUTH \\'EST AFRICA
appears that Applicants are advancing this contention in earnest, Re-
spondent will in the succeeding paragraphs analyse it in some more detail.
31. Applicants' argument regarding Article 73 may be rendered as
follows :
(a) Article 73 of the Charter embodies standards higher tbari ttiose
whidi applied under the Mandate l.
(b) If Article73 is in law applicable to mandatcd territories, its provi-
sions would, in terms of Article roj of the Charter, prevail over the
provisions of the Xandate 2.
(c) If Article 73 is not in law applicable to mandated territories, it must
nevertheless be deemed to be applicable, because :
(i) in its resolution 18Aprilxgq6, the League of Kations Asseinbly
noted that Chapter XI of the Charter (of which Article 73 forms
a part) embodied principles "corresponding to those declarcd
in Article22 of the Covenant of the League" ';
(ii) if Articl73 were not deemed applicable, "[a]pplication of the
standards of 1920 to the interpretation of the Mandate, coiild,
in principle, result in a finding that the standards of Article73
Iiad not been met" 2.Such a result would be "anomaloiis and
intolerable" 3.It is accordingly "logically imperative" to read
the Mandate as if incorporating the standards laid down by
Article73 4.
32. The first basis for consideration of these arguments is the assurnp-
tion that Article 73 applies to mandated territories not placed under
trusteeship.
Article103 of the Charter reads as follows:
"In the event of a conflict between the obligations of tlie members
of the United Nations under the present Charter and their obligations
under any otherinternational agreement, thejr obligations under the
prescnt Charter shaII prevaiI."
The effect of this Article would be that Article 73, if applicable to
mandated territories. would prevail over any inconsistent provisions of
the Covenant, or the Mandate (that is, assuming that the Mandate is an
"international agreement"). Such inconsistent provisions of the Covenant
or the Mandate would then falaway, leaving Article 73 of full force and
efiect. Article103 would, however, not have the effect of amending the
Mandate by substituting the provisions of Article 73 for any inconsistent
provisions in the hIandate.
Since the present action is brought in terms of the compromissor~
clause in Article 7of the hfandate, it would accordingly not avail Appli-
cants to show that Article73 of the Charter (which isnot covered by the
cornpromissory clause) is applicable, and riot Article 2 of the Mandate
(which, it is assurned for preçent purposes, is so covered).
33. It tlien remains to consider the arguments presented by Applicants
on the assumption that Article 73 is not applicable to mandated terri-
tories.On this basis they rely firstly on the League resolutioii of 18
April1g46.
IV,p. 496.
Ibid.. p. 517.
' Ibid.. p. 516.
' Ibid., p. 518. REJOISIJER OF SOUTH AFRICA I39
This resolution noted:
". .. that Chapters XI, XII, and XII1 of the Charter. .. embody
firi~rciplecorresponding to those declared in Article 22 of the Cove-
nant of the League ... l".(Italics added.)
Tlie word "principles" is not synonyrnous with "detailed provisions"
and "corresponding" does not mean "identical". The League resolution
consequently did not purport to convey that Article 22 must be inter-
preted as containing al1the provisions of Chapters XI, XII and XII1 of
the Charter, and such a suggestion would indeed have been absurd. The
resolution did not purport to "noteJ' any more than that the basic
principles underlying the said Chapters of the Charter are similar to thoçe
found in Article 22 of the Covenant. There is consequently also no basis
for suggesting that the resolution was intended to effectan amendment
to the Mandate to bring it into accord with Chapters XI, XII and XII1of
the Charter, or even with the "principles" of such Chapters.
34. -4pplicants' next argument isthat, even ifArticle 73 is not in law
applicable to mandates, itwould nevertheles3 be "anomalous and intoler-
able" not to interpret the Mandate as containing the samc standards as
those set out in Article 73 3. Respondent does not, however, appreciate
why it is "logically imperative" 3 to avoid a conclusion that two instru-
ments executed a quarter of a century apart, and relating to different
types of territories, prescribe different standards. The mere fact that
Applicants consider such a result to be undesirable, would not entitle
this Court to disregard the most basic principles of law with a view to
remedying such a situation. In this regard, reference may be made to the
major principle of law enunciated by Judges Spender and Fitzmaurice:
"The principle thst a Court of law cannot correct the past errors
or omissions of the parties, and that it is not the province of a Court
to place some of the parties in the same position as they would have
beeii in ifthey had taken action they coiild have taken, but did not
take, and even deliberately avoided taking '."
35. The above discussion regarding Article 73 is offered merely in
further demonstration of Applicants' confusion between interpretation
and application. In truth the standards set by Article 73 (Le.,as laras
iis relevant paragraphs (a) and (b) are concerned) are in Respondent's
contentioii not substantially different from those laid down bythe Man-
date, as will be evident from the qualifications inherent in thern, referred
to and ernphasized by Respondent in the Counter-Nemorial 5.Plpplicants
have not directly replied to Respondent's reference to the signifi~ance~of
the qualifications and have in fact evaded this point in the manner in-
dicated above 6. Respondent also contended that its policies, as ex-
pounded in the Counter-Mernorial, were in no way in conflict with, but
were indeed aimed at the attainment of objectives as are set out in the
relevant paragraphs (a) and (b) of Article 73, due regard being had to
l IV, p. 517.
As Applicants appear toconcede-vide IV,p. 518: "Even if Article 73 were
not aVide para.31 (c)(ii), supa.ulars to mandatedterritor..."
' South IveesAfréca, Preliminary Objecfions,Jztdgment, I.C.J.Refiorts 1962.
11.319at p. 468.
Vide, e.g.II, p. 396.
l'ide para30,supra, and sec.C. paras.26, 30 and42,infra.I40 SOUTH WEST AFRICA
the aforesaid qualifications l, and Respondent abides by this contention.
Applicants have not attempted to controvert this contention per se2.
This aspect of the matter is, however, concerned with the secoiid part of
Applicants' case regarding Submissions 3 and 4, and is therefore not
further discussed here.
36. The only basis upon which inte~pretation of the relevant,tests could
produce a result whereby current norms govern tlie content of the Man-
date, would be if Article 2 was ab initio subject to some qualification
such as:
"The Mandatory shall, when exercising its full power of adminis-
tration and legislation, give effect to such standards or norms a:
may at the tirne of such exercise be generaily applied by other
States."
Inasmucli as no such qualification was inciuded in the express terms of
the mandate instrument, Appiicants would then have to contend that
it must be read into the Mandate as a necessary implication. It is, how-
ever, unthinkable that the authors of the Mandate (which included several
Mandatories 3) would have decided upon, and that the Maiidatories
would have consented to, the imposition of an obligation of such un-
certain content, posing so many difficulties of application and giving rise
to the possibility of interminable dispute. Since Appiicants do not rely
on such an implication, and no rnaterial has been adclucecl tosuggest the
eslstence thereof, Respondent wiLlnot devote any iurther considei-atioir
thereto.
37. In addition to relying on the introduction of the alleged norm into
the Mandate by a process of interpretation, Applicants suggest somewhat
tentatively that such a norm rnay by itself have legal validity as "a rule
of customary international law", or asbeing one of "the general principles
of law recognized by civilized nations" '.
The question whether this is so or not, really falls outside the purview
of the present case, as this Court does not possess jurisdiction to deter-
mine whether Respondent has contravened objective principles of inter-
national Iaw existing independently of the provisions of the Mandate 5.
In any event, however, Respondent submits that neither of tlie said
sources of law has given rise to any "norm of non-discrimination or non-
separation" as defined by AppIicants, which would entai1 that a?,y dif-
ferentiation on the basis of group rnernbership, however beneficial such
differentiation might be in intent or application, would be illegal6. And
furthermore, even if it might be possible to Say that such a norni has
evolved over the past years in international society generally or as be-
tween certain States, it would not be binding on Respondent inasrnuch
as the basic principles of international law involve an effect ïi-hich has
been summarized as follows:
"... if (i)at sorne time in the past. . .any other 'dissenting' State
had in fact, under international law as it then stood, enjoyed rights
' Vide Counter-Mernorial,loc. cit., also II. 459-460 (paras.5-7).
1.e.. as distincfrom raisingissues regarding factualaspects of Respondent's
policies. Vide sec. C, para26, 30 and 42,infra.
I7id8 Wrt II, Chap.111,para. 42,supra.
' IV, pp. 510 and 519,
Videpara. 3, supva.
Videsec. A, para.8,supva. REJOINDER OF SOUTH AFRICA x4I
wider than those conferred by international law in its present form,
and (ii) on the emergence of a new and more restrictive rule, had
openlp and consistently made known its dissent, ai the time when
the new rule came, or was in process of coming, into otherwise
general acceptance, then the dissenting State could daim exemption
from the rule even though it was binding on the cornmunity generally
and had become a general rule of international law l".
This principle was applied in the Fisheries case, where the Court said:
"In any event the ten-mile rule would appear to be inapplicable
as against Norway inaçmuch as she has always opposed any attempt
to apply it to the Norwegian coast *."
It is quite clear from the record herein that Respondent has openly and
consistently rejected any suggestion that any rule of international law
prohibits the application of a policy of differentiation in South IVest
Africa or South Africa itself.
Conclusion
38. For the reasons set out herein, it is submitted that Applicants have
failed to establish that their alleged nom satisfies either of the two
requirernents which are essential for present purposes 3: i.e., they have
not shown-
(a) that any norm prohibiting a policy of differentiation exists in inter-
national law, either generally, or as legaliy binding on Respondent;
or,in anyevent,
(bJ that any such norm is embodied in Article 2 of the hlandate.
On the contrary, Respondent respectfdly submits that differentiation
on the basis of ethnic group is legally permissible in terms of the Mandate,
and does not fierse constitute a violation of the provisions thereof.
Fitzmaurice, Sir Geratd, "TheLaw and Procedure ofthe International Court of
Justice,rggr-1954: GeneraiPrinciplesand Sources of Law",B. Y.B.E.L., Val. XSX
(7953)P.P. 1-70 atP. 25.
FislierieJudgment, I.C.j. Reports 1951p.I16 atp. 131. VideaIso E'itzrnaurice,
Sir Gerald.op. cilp. 16.
T'idepara. 3. supra. Section C
THE LEGALBASISOF APPLICANTSC ' HARGE THAT
RESPONDENT' S OLICIESAND CONDUCT IN FACTFAIL TO
PROMOTE WELL-BEINGAND PROGRESS
A. Introductory
I. In section B, sufiva,Respondent has demonstrated, it is subiiiitted
conclusively, that no "iiorm of non-discrimination or non-separation", as
formulated by Applicants, can be read intothe provisions ofthe Mandate
or isotherwise binding on Respondent. If,as is stated in some parts of
the Reply, Applicants' Subrnissions 3 and 4 are both based on the esisl-
ence of this norm l,then the conclusion reached in the said section B
would by itself dispose of this part of the case. However, as has beeii
noted l, it is not quite clear that Applicants' said statements are to be
taken at their face value, particularly since Applicants still repeatedly
advance the contention that Respondent's policy is directed at the
unauthorized object of oppressing the Native inhabitants of the Territory
for the benefit of thc Europeans, and thep enter into lengthy discussion
and present a mass of material in attempted substantiation thereof.
In the reslrlt Responderit is obliged to give consideration also to the
question whether any legal basis, other than the alleged "norm of iio~i-
discrimination or non-separation", exists for a judicial determi~iation of
alleged breaclies of Article 2, paragraph 2, of the Mandate, and, if ço,
what itsnature is. The present Chapter ~111be devoted to this purpose.
2. In the Counter-Jlemorial, ~ei~ondent's attitude to the question
posed in the preceding paragraph was a tn-ofold one. In the first place,
Respondent contended that there existed no basis for a judicial determi-
nation of an alleged breach of Article 2, paragraph 2, of the Mandate,
inasmuch as the Permanent Court of International Justice \vas iiot
intended to have jurisdiction to entertain such matters, which fell to be
considered by the administrative supervisory organs, viz., the Council of
the League assisted by the Permanent Mandates Coinmission ? If this
contention isupheld then it puts anend to Applicants' charges regarding
violations by Respondent of its obligations under Article 2, paragrnph 2,
of the Mandate. Only if this contention iç rejected will it be necessaru to
give coiisideration to Respondent's second contention which is restated
as follows: Article 2, paragraph 2, read in the light of the Covenant,
required Respondent to use its "fiill power of administration ancl legis-
lation" for the purpose of prornoting to the utmost the material and
moral well-being and the social progress ofthe inhabitants of tlic Terri-
tory, The consequence of this was, in Respondent's submissioti, that tiie
particular method to be ernployed toivards achieving this purpose 3~~s
left to Kespondent's diçcretion, and that legislative or administrat~\~c
action cauld therefore violate Article 2,paragraph 2,only if actuated by
a motive or intent other than one to achieve such purpose 3.
l Vide sec. A. parag.supra.
VidePart II, Chap. II. para. 13. supra.
Ibid., para.!rsupra.II, pp.384-392. REJOISDER OF SOUTH AFRICA I43
3. Although the arguments summarized in the preceding paragraph
ivere, it is submitted, advanced with clarity and precision in the Counter-
Nemorial, Applicants do not deal pertinently with them in the Reply.
Instead, Applicants commence by saking:
"As Applicants understand these arguments ancl their underl~ing
prernises, both cxplicit and implicit, thcy mny fairly be summar~zed
for clarity of replyby the six following propositions . . .l",
and they tl-ien set out certain propositions which ejtlier do not reflect
arguments ever propounded by Respondent, or etse deal in a disjoiiited
and unco-ordinated waj7 xvith certain lirnited aspects of Respondent's
case. -4s in some previous parts of this Rejoinder, it will consequently be
more convenicnt to adhere to the arrangement employed in the Counter-
3lemorial. This approach has the advantage of providing a clear demon-
stration of which of Respondent's contentions arc contested by Appli-
cants and, if so, on what grounds-matters which tend to become lost
in obscurity as :iresultof Applicants' method ofreplying to proposjtions
formulated by theniselves rather than to Respoildent's arguments.
It is proposed thereforc to consider the material adduced by AppIicants
in two stages, dealing first with the question whether the authors of the
Mandate intcnded to bestow jurisdiction on the Permanent Court in
respect of alleged violations of Article 2,paragrapli 2, of the Mandate,
alid thereafter witil the lepl basis on tirhichsuch jurjsdictjon, if it exists,
could be esercised.
B. Were the Obligations under Article z, Paragraph 2, Intended to Be
Justiciable ?
4. At the riskof heing regarded unnecessaiily repetitive, but bj. reason
of certain apparent misapprehensions or misrepresentations on Appli-
cants' part, Respondent wishes once more to ernphasize the true naturc
of its contention in the present regard. In the Counter-Jlemorial, this
contention was clearly and explicitly formulated, e.g., in the following
passage :
". .. attention lias been drawn to the widc and general provisioiis of
Article 2.In this respect it has heen subrnitted 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 rnight well arise if
the Court were required to adjudicate on disputes arising froin an
alleged breach of the obligation to '. ..promote to the utrnost the
materia1 and moral iveI1-beingand the social progress of the inhabit-
antj of the territor?. . . . For the reasons set out, it was submitted
fhat the attthorsof the Mandatedid not intend the Coztrtto lzavejzwis-
diction to entertain such disfiuies, the Permanent Mandates Com-
mission and the Council of the League being the technical and
political bodies spccially charged with the function of dealing with
such matters *." (Italics added and footnotes omitted.)
And in another part of the Counter-Afernorial, to wliich reference was
made in the above passage, Respondent said :
"Respondent is mindful of the fact that legal questions are often
l IV,P. 477.
' 11,pp. 354-3ç5.'44 SOUTH WlZST AFRICA
encompassed or intertwined with political issues, and thatIk:jaris-
diction of the Court,if othmise estalilished, wouZd not for thut reasori
beousted. 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 authovs of the Mandate intended that the Court
should flerfovwi SUC~ a functiolt in the Mandate System-if they
intended that the Court should, one would have expected very
esplicit language to that effect '." (Italics added and footnotes
ornitted.)
However, in the six "propositions" iormulated by Applicants "for
clarity of reply", the above contention shines by its absence. The "pro-
positionç" which do deal with the consequences of, or inferences to be
drawn from, the nature of the obligations embodied in Article 2,para-
graph 2, of the Mandate, do not cover Iiespondent's true contention,
as \vil1be shown in the succeeding paragraphs.
5. The first proposition formulated by Applicants which may be
relevant for present purposes, is their Proposition Ko. 1, which attributes
to Resyondent the following contention:
"The Mandate assertedlycreates no legal obligations justiciable as
between Applicants and Respondent, in terms of the compromissory
clause contained in Article 7 of the Afandate 2."
Although obscurely worded, this passage apparently refers to Re-
spondent's contention that this Court does not possess jurisdiction in
respect of the present proceedings3-as distinct from the alleged violation
of Article 2, paragraph 2, only-a contention which was raised in the
Preliminary Objections, and certain aspects of which were re-argued in
the Counter-Jlemona14. Respondent's contention in this regard turned
largely on the interpretation of the compromissory clause in Article 7,
and on the question whether it had survived the dissolution of the League
of Nations and the Permanent Court It is not clear whether Applicants'
Proposition No. I is intended to encompass the whole of this argument.
Their rcference to the "effectiveness and scope of the compromissory
clause" " andtheir crossreference to IV, pages 520-5466suggest that tliey
do. If that is so, it is completely erroneous to represent the argument
as being that "the Mandate assertedly creates no Eegalobligations jrtsli-
ciable as between Applicants and Kcspondent". Firstly, Respondeiit
never contended that any of the obligations prescribed in the Mandate
were not legal obligations '. Secondly, Respondent did not content1 that
none of the Mandate obligations was rendered justiciable betweeii
Applicants and Respondent : the contention was confined to such obliga-
tions as did not affect the interests of the Applicant States or their
nationals % Thirdly, Respondent's argument in question was ]lot con-
cerned only with the situation as at the crealiot~of the Mandate oblign-
II, p. 184.
IV, Y 477.
crented "noVlegal obligations justiciabbctween hplilicontsiand Respondeiit".te
VideII, Book II, Chap.V B.
'Ibid., para.t,p. 175.
IV, p. 478.(Italicadded.)
' Videl'art Il, Chap. II, paraii-14. supra.and para. 6, infra.
VideII,PLI. ~7j-193. REJOISDER OF SOUTH AFRlCA 145
tions, but'also with the question whether any jurjsdiction wliich may
have been created, survived the events of 1945-194 6urtliermore, it is
difficult to secwhat relevance these topics have to tfie preçent argument,
which is coricerned with the interpretation and effect only of Article z,
paragrapfi 2, of the Mandate-matters whicli are clealt with by Applicants
in purported reply to Propositions Nos. 2 and 3, as attributed by them to
Respondent '. It will therefore suffice to Saythat the questions relating to
the scope, purpose and continuing effect (ifany) of the cornpromissory
clause have nlrendy been dealt with 2.
6. Proposition Ko. I having thus been elimiriated, the rest of die
present argument \vil1be devoted largely to contentions raiscd by Appli-
cants in reply to Propositions Nos. 2 and 3. The first point to be noted is
that neither of these Propositions correctly reflectç Respondent's con-
tention now under consideration.
In Proposition No. 2 the following contention is attributed to Respond-
ent :
".Artictc 2,paragraph 2, does not ... çreate or embody obligations
of a legal nature, but is assertedly a mereIy political or moral
exhortation; this argument Respondent seeks to reinforce by
reference tothe generality of the terms of the Article l."
Aç has been shown 3,this proposition is a complete perversion of Respond-
ent's argument. In fact, Respondent has never said, and does not now
Say, that Article 2,paragraph 2, of the Mandate did not create or embody
obligations of a Iegal nature 3.
The part of Applicants' Proposition No. 3 which is relevant for present
purposes 4,attributes to Respondent a contention that any legal obliga-
tion embodied in Article 2,is ". . . of a political character which shozlM be
left for determination by a political body rather than by a Court . . ." l.
(Italics added.) The italicized portion in this quotation does not mercly
reflect an inaccurate use of words: Applicants seriously contend that an
argument in that form was propounded by Respondent. Thus they refer
to Respondent's ". .. proposition that the CozlrtshouldEeaveto a 'political
body' determination of the obligation stated in Article z, paragraph 2,
of the Mandate . . ." (italics added), to Respondent'~ ". .. contention
that the obligations of Article 2, paragraph 2, ... are not appropriate for
judicial decision, but sh~rtldbe remiited to 'political' bodies .. ." (italics
added), and to its ". . . contention that the Court shotdd leave to a
political body determination of the 'social, ethnological, econornic and
political considerations' underlying Article 2, paragraph 2 . .." '.
(Italics added and footnotes omitted.)
' IV.p. 477.
* VidePart II. Chap. IV B. supra.
Ibid. C,hap. II. parasI 1-14.sspra.
' I.e.the first part:the secondpart concerns Ilespondent's alternative contention
regarding good fztitas thecriterion foradjudication,as isconsidered in paras.20
cf seq.infru.
IV,p. 485.
Ibid., p.490.
Iba'd.,1).qgi.14'3 SOUTH WEST AFRICA
It need hardly be stated that no contention to this effect was ever
advanced by Respondent l.
7. In the result, the above-mentioned Propositions "whicli Applicants
have sought to formulate, in aid of a clear reply to Respondent's legal
analysis of Article z, paragraph 2" 2,do not only include contentions in
fact not advanced by Respondent, but they leave out the submission
actually made. Thus Proposition No. 2 ascribes to Respondent an argu-
ment only that the obligations imder Article 2, paragraph 2,were not ofa
legal nature, whereas Proposition No. 3 is based on the premise that
such obligations were justiciable. Somewliere in between the two Pro-
positions Applicants seern to have mislaid Respondcnt's true contention,
viz., that although the obligations under the Article were of a legal nature,
the Court was not intended to possess jurisdiction in regard to alleged
breachesthereof.
This failiire even to mention Tiespondent's actual contention is rcflected
in the positive averments made by Applicants in answeï :c the above
Propositions. Thus in answer to Proposition No. 2 they seek to sliow-
"[tlhat the Mandates, including the Mandate for South ijTcst Africa,
were conceived and executed as legally binding instruments-as a
whole and in each of their parts. ..3".
This is, of course, utidisputed*.
As regards Proposition No. 3, tlieir argument is directed at demon-
strating that-
", .. a court . .. ventures onto [economic, political or sociological]
terrains whenever the judicial duty is engaged to adjudicate upon
legal rights and interests of litigants with standing to invoke the
competence of the Court
and that "Courts. . .donot shun the judicial duty in the iacc of technical,
political or other complexities" 5.
Once more, this may be conceded and is not in issue 6;but it assumes
what has to be established, viz., that the authors of the Mandate intended
to provide, and consequently did provide, for "competence of the Court"
or a "judicial duty" in regard to alleged violations of Article2, paragraph
2, of the Alandate. Xo argument is specifically directed by Applicants to
this, the vital aspect of the present enquiry. However, some of the
arguments used by them in respect of Propositions Nos. 2 and 3 ma?.
nevertheless be relevant also to the real question at issue, and will
accordingly be dealt with on that basis.
8. IVhether the Court possesçed jurisdiction in respect of alleged
breaches of Article 2,paragraph 2, ofthe Mandate, depends on the correct
interyretation of the Mandate, and thus ultiniately on thc intentions of
itsauthars '. This intention is to be determined in the light of circum-
stances existing, and conceptions prevalent, as at the time of creation of
For the contentionactually advünced by Respondent, videpara. 4.strpra
IviP 491.
' Ibid. p.480.
* Vide Part II,Chap. II. para.II,supra.
' Ibid., p492.
Vide sec. B. para. 5. supra.nter-Rleniorial, quoted in par4. supro.
, REJOINDER OF SOUTH AFRICA I47
the Blandate '. For the reasons summarized above =, Respondent sub-
mitted in its Counter-Memorial that the authors of the hIandate did not
intcnd to bestow such jurisdiction on the Permanent Court. By reason
of thenature of the argument presented in the Reply 3,Applicants do not
devote any consideration to the intentions of the authors of the Mandate,
but set themselves the more restricted target of showing that in practice
courts (including international courts) are on occasion required to apply
broadly formulated provisions as well as provisions requiring an euami-
nation of technical and political matters. This was of course never
disputed by Respondent-Respondent is well aware that in the course
of their normal duties courts are on occasion called upon to enquire into
matters which have political ar technical aspects. What Respondent did
contend \vas that it could never have been the intention of the authors of
the Mandate to vest the Court with jurisdiction relative to ma.tters of a
purely political nature arising under Article 2, paragraph 2, of the Man-
date, particularly in view of the existence of supervision by the Council
and the Permanent Mandates Commission.
Esamples of instriiments which granted (or were held to have granted)
jurisdictioii in such matters, could consequently he of relevance only ta
the estent to which they might bear on the intentions of the autliorç of
tlie Mandate. Applying this test, the examples quoted by Applicants ma-
be graded into the following three categories, on the basis of the degree of
their relevance to the issues in dispute:
(a) the provisions of the various mandates;
(ù) other instruments prior to or roughly contemporaneous with the
nandates, and dealing with a more or less analogouç subject-matter;
(c) instruments concluded a considerable period after the Nandrite, or
~vhichfor other reasons cannot have any bearing on the intentions
of the authors of the Mandate.
These various categories will be dcalt with in the next succeeding
paragraphs.
9. As regards category (a), Applicants rely on four cases relating to
mandates +.It may be convenient to preface consideration of these cases
by brieflj.stating tlie sensein wliich they mal be relevant to the present
issue. -4pplicants rely on them to establish the proposition, noted above 5,
that the mandates "were conceived and executed as legally bindlng
instruments-as a whole and in each of their parts" 6. This is, however,
not disputed by Respondent ',andthe present treatment \vil1accordingly
be devoted to ascertaining whether ttiey may also be relevant to what
Respondent submitç is the true issue between the parties, viz., whether
it \vas tlie intention of the authors of the Mandate that the Permanent
Vide sec.B, para. 6, supra.
T'idpara. 4, siipro.
Vide paras. 6and 7. supra.
+ Vide IV, pp. 480-481T .hesz cases are: Jerusnlzrn-JaSa Districl Govertaorand
..lnoihev. Stilsiman hfitrrand Others,1926 A.C. 321;ilitouiiey-Generv. Abraham
Allshrtler as quotedinMcSair, A.D. and Lauterpacht, H. (Eds.), AnnatalDigest of
Ptrbliclnfcriautiohal I,uw Case1927-1928 (rgg~) ,p.55-56; Winler v. hlinister of
Defariceund Others. 1940 A.D. rgq and dfnv~owzrnatisPalestine Çowccssio~zs,Judg-
tneiiAra. 2, 1924,P.C.I.J Series A, No.2.
Videpara. 7,stipva.
IV, p. 480.
7 Vide para. 6,supru.145 SOUTH WEST .-IFRlCA
Court should adjudicate on aiieged violations of Article z of the Mandate
for South West Africa '.As wiIlbe shown, none of the cases cited provides
direct authority oii this point.
Only the Mavrommatis case dealt with the jurisdiction ofthe Permanent
Court, but there the dispute was concerned with certain specific provisions
of Article II of the Palestine Mandate 2,which provisions are riot analo-
gous, and arc indeed not alleged to he analogous 3,to the broadly stated
objective embodied in Article 2, paragraph 2, of the Mandate for South
West Africa.
The other tliree cases were tried before municipal courts. and conse-
quently do not deal with the jurisdiction exercisable by the Permanent
Court. Their authority on the point at issue could therefore at most be
of a relative nature; in other words, thep could he relevant oiily to the
estent that they might contain views on the question whether alleged
violations of a provision as contained in Article 2, paragraph 2, of the
Mandate were intended to be justiciable in any court of law at all. and
if so, on what basis. Hoivever, neither of the two Palestine cases 'can be
of assistance in this regard, inasmuch as the provisionsdealt with in them
were, as in the Mavrommatis case, not analogous to Article 2, paragraph
2, of the Maridate.
Altshuler's case applied Article 15 of the Palestine Mandate, which
provided that ". . . no discrimination of any kind shall be made bet\rleen
the inhabitants of Palestine on the ground of race, religion or language" 5.
Murra's case was concerned with Article 2 of the Palestine Mandate,
which prescribed that ". . . the Mandatory [shall be) reçponsible for
'safeguarding the civil and religious rights of al1the inhabitants of Pales-
tine, irrespective of race and religion' " 6. Inasmuch as the Ordinance
then in dispute did not discriminate in favour of perçons of an' one
religion or race. it \rras held to be inlra vires 7.As lias been noted a, the
Court in Murra's case expresslÿ disavowed any general power to pro-
nounce upon the merits of the legislative and administrative acts of the
Mandatory Administration. or to test them against its view as to "the
requirements of natural justice".
It will be apparent, tkerefore, that neither of the above two cases Fan
be of any authority for present purposes. The only rernaining case, i.e.,
I.Vinterv. Minister of Befence, on the other haiid, did give attention
specifically to Article z, paragraph 2, of the Mandate for South West
l Consequently Respnndent will not deal specifically with the passage quoted
from Wright, Q.,?Ifandalesunder ihe Leaguc of Arafions(1930)a .tIV, p. 4So which
does not appear to have relevance to any actual issuebetween the Parties.
~IIavrommatis Polestiire Concessions. judgment So. 2, 1924,P.C.I. J.. Series -4.
lV0.2, pp. 17-19,
IV, p. 481.
+ Jerusalem-Jnua ~istrictGovernor awd A9tolher v. Suleitnait lllurra and Othtrs.
1926 AC. 321 and .4ttor>tey-Generav. Abraham Allshitler as quoted in JIcXair,A.D.
and Lauterpacht, H. (Eds.), Annuel Digesi of P~liIic I~~!crnPlio?ralLaw Cases.
1927-1928 (1931). PP. 55-56
hlch'air, A.D. and Lauterpacht, H. (Eds.). .-innunlDigestO/Public Iiileriiatio~ta~
Law Cases, 1927-1928 (19311, p. 56.
Jerusalein-Jaffa District Gouerrrorand d liotherv. Sttleitna?t Aliirra aOthers,
1926 X.C. 321 at p. 327.
' Ibid.,p. 328.
11,p. 184, REJOINDER OF SOUTH AFRICA 149
Africa. It will consequently be dealt with in some detail in the next para-
W.ph.
10. In Winter's case, the question at issue was wliether certain \var-
time ernergency regulations were invalid as being contrary to the ter~ns
of the Mandate for South West Africa. The Soutli African Appellate
Division held that they were not contrary to such terms, and that-
"[tlhe question ~vhethcrthe Courts in S.\V.A. would have jurisdiction
to declare ultra vires any legislation in conflict with the provisions
of the Mandate does flot there/orearise in the present case '". (Italics
added.)
It is to be noted in passing that Winter's case consequently provides
no authority for Applicantç' proposition that-
"Courts in the Mandated and Mandatory areas have frequently held
that legislation within the Mandated Territories must be consistent
with the obligations of the Mandate charters. The theme runs
throughout these cases that the Mandate charter is the basic or-
dinance for the hlandated Territory . .. -".
However, the important aspect for present purposes is the grounds
upon which the Court held that the emergency replations were not
contrary to the Mandate. In this regard the Court said, referring to the
consideration given in a previous case to the nature and effect of the
hlaridrite:
"Tize co~~clusiona srrivedut are thatfull power of administratiorz and
legislation isvestedziathemandatory, fhat thepbnary aufhority to make
lawsartd enforcethemcoversthewholesfihereof governmentand thul iri
taki~igsuch measures as are caLculatedto maintain public order the
ma?adatoryacts as any other sovereign aulhorily wouldacl if iikecir-
czrmstances. It is true that this power of administration and legisla-
tion is given subject tothe terms of the Mandate, which in Articles 3,
4 and j sets fortli certain prohibitions and safeguards to be observed
by the mandatory, but none of these prohibitions or safeguards are
relevant to the present inquiry. The appellant maintains, howevcr,
that the provisions of the Proclamation are in conflict with the pro-
vision in Article 2 of the Mandate that the mandatory shall promote
to the utrnost the rnaterial and moral wcll-being and the social
progress of the inhabitants of the territory. As I have poinled ~t
abozjefhis Court bas laid down that, iîr taking meastrres to maintair*
ptlbfic order, the mandatory acts with jull sovereign authority. The
Proclamation in cluestion is çuch a measure, issued by the legislativc
authority duly constituted by the mandatory, and in its preamble
itrecites as one of ttie reasons for its issue that, under the circurn-
stances thcrein set out, the ordinary law of the land is inadequate
to enable the Government to fulfil its duty in safeguarding the wel-
fare of the inhabitants and in cnsuring the security of the State.
Tllat being so, it cannot in my opinion be said that it iç in conflict
with tlie duty to promote the well-being of the iiihabitants of the
territory 4." (Italicc added.)
LITiutev. ;lIinisleO/Uefence nnd Others.1940A.D. 194 at p. 19s.
IV,p. 480.
"ex. v. Chvistian.924 A.D. 101.
+ IITiiz:v. hlinisleO/ I)efetace atOthers, 1940A.D. iy4 at pp. 197-198. On the strength of the above decision, Applicants say:
"Thus, the Court had no difficulty in deciding whether or not
legislation was consistent with the broadly forrnuiated obligations
of Article 2.paragraph 2, of the Mandate l."
Inasrnuch as the CO& held that the Mandatory poçsessed "full
sovereign authority" in the respect in question, it was indeed not clificult
to find that such authority was not exceeded. In keeping with this ap-
proach, the Court's reference in the above passage to one of the recitals
in the Preamble of the Proclamation under which the regulatioiis were
promulgated, is instructive. The recital was to the effect that ". .. the
ordinary law of the land [was] inadequate to enable the Governinent to
fulfil its duty in safeguarding the welfare of the inhabitants ..." ..\Ltiiough
the Court referred to this reason given by the law-giver for the issue of
the Proclamation, it did not conduct any enquiry of its own irito the
question of the soundness or justifiability thereof-quite etlidently on
the basis that the function to do so was entrusted not to the Court but
to the Mandatory exercising the "sovereign authority" in question.
rr. The second category of instrumentç referred to bp ,4pplicniits are
those which were concluded prior to or roughly contemporaneously with
the Mandate, and may conceivably have exercised some influence on the
intentions of its authors, or mny throw some light on the rneanirig of its
provisions. The only international instruments rnentioned bp .Ippiicants
which could be placed in this category, are the minority provisions, and
the Constitution of the Interiiational Labour Organisation 2. These
instruments were dealt with by Respondent in the Counter-JIemoria13,
and, for reasons there set out. it was submitted that an examiiiatiori of
the relevant provisions strengthened the conclusion that the authors of
the Mandate could not have intended to grant justiciable legal riglits or
interests to individual Mernbers of the Leape, relative to the obligation
imposed upon the Mandatory by Article 2, paragraph 2 (save possihly in
so far as their rnaterial interests could be affected by a breach thereof),
and consequently (save in the respect stated) did not iiitend the Court to
possess jurisdiction in respect of alleged breaches thereof. Applicaiits
have not sougiit to controvert Kesyondent's argument in this regard '.
Applicsiits in the Reply also refer tothe testing power exercised by the
Supreme Court of the United States of America in determining the legality
or otherwise of measures aileged to contravene the provisions of the
Constitution There is, however, iio reason to think that the authors of
the inandnte system intended to bestow a similar power on the Per-
manent Court. On the contrary, the circurnstances referred lo rri the
estracts from the works of Sir Hersch Lauterpacht \\.hich are quotcd
IV,p. 481.
Ibid., p.482.
"1, pp. 187-i5g.
' Save to alimited cxtent iiindiffercnt context-vide IV, p. 546 and sec l'art
11, Chap. 1V U, para. 10,supra. For purposes af'the present discussion App1ic:ints
rely on these instruments only asauthority for theproposition that they coiitain
"generally formulated obligations or sets of obligationwhich provide for, or have
actually bcen the subject of judicialinterpretation" (IV, p. qSz), as to whicti
proposition. vide para. 8, supra.
''IV,pp. 4s3, 457. REJOINDER OF SOUTH hFKiC.4 I5I
bel& l, would render such an intention most unlikely. and would at least
seem to exclude the possibility that such a power would have been granted
without rnaking express provision therefor, and without any specific
references thereto in the preliminary discussions.
12. The last category of instruments referred to by Applicants are those
whick cannot have any bearing on the intentions a£ the autliors of the
Mandate inasrnuch as they are remotc from the Mandate in point of time
or subject-matter. This category includes most of Applicants' examples 2.
Some of these examples may show that courts are sometimcs called upon
to exercisefunctions correçponding in somerespects with those conteiided
by Applicants to have vested in the Permanent Court in respect of man-
dates; but they almost invariably also reveal important aspects of
difference, and in any event they do not show that the grant of such
functions is so common as to be presumed even ~vherethere esist strong
contra-indicat ions.
In the case of virtually al1the esamples quoted by Applicants, itis to
be noted that specific criteria are prescribed for the exercise of the Court's
jurisdiction, thougb in some instances of a wide nature. Thus, in the case
of the Customs RégimebetweenGermalzy andAustria the Court decided
that the customs régimethen under consideration wasinconsistent with
an obligation expressed as follows:
". . . [Austria] shall not violate lier economic indepcndence bqr
granting to any State a special régime or exclusive advantages cal-
culated to threaten this independence 4".
The Court's Opinion was not based, as asserted by Applicants, on "an
assessrnent of future political contingencies" 5,but purely onthe contents
of the régimecreated by the Austro-German Protocol of 19 hlarch 1931 6.
Zn the European Convention for the Protection of Human Rights and
Fundamental Freedoms ?, the rights and freedoms in questio?,are not
defined simpliciter with reference to such broad formulations as right to
life", "right to liberty and security of perçons", etc., as suggested by
Applicants The Convention contains numerous detailed provjsions,
sorne positively prescribing what is to be regarded as included in ,the
concepts concerned, others negatively stipulating exclusions, exceptions
and qualifications, and yet others combining the positive and negative
aspects. The total result is that in each instance, to a greater or lesser
extent, the content ancl limits of the obligation undertaken are defined
with reasonable exactness 9. Indeed, a recent commentator states that
the rights protected by the Convention ".. .were rights which States were
Vzde paras. rq-17itiJ~a.
Vide,e.g., IV,pp.482-483. 485-487.
CuslowtsRé,oinzebelween Gerinatryntld AustriAdvisovy Opinion, 1931,P.C.I.J.,
Series AIB, No. 41, p. 37.
' Ibid.,p. 43. '
IV, p.486.
CUS~OWR~é SgimebcfweenCernzany and Austria,slduisory Opiition1931.P.C.I,j.,
SeriesAjB, Xo. 41.p. 37 atpp. 49-52,
Referred to in IV, pp.482-483 and 486.
Ibid. p. 483.
VideConventionA ,rticle2(right tolife)Article 5 (right to libeand security
of person);Article 8(right to respect for family life); Artgc(tight tofrecdom of
thought, conscience;ind religion;setout in WeilG. L.,The Europearl Conventio?son
Humara Rn'ghls:Background. Development and Prospects (1963)~p~ 229-232. 152 SOUTH WEST APRICA
wikng to enforce because of their precise definition" '. (Footnote
ornitted.) Applicants' statement that these rights-
". .. include such broadly formulated rights as the right to life, the
right to liberty and secunty of persons, the right to respect for
family life, the right to freedom of thought, conscience and religion,
and many others 2",
is consequently misleading, to Say the least.
Furthermore, it is to be noted that the Convention created a unique
and elaborate system of enforcement requiting prior exhaustion of
domestic remedies, and involving a number of organs, viz., the European
Commission of Human Rights, the Cornmittee of Ministers, and the
speciallj~created European Court of Human Rights 3. It jsalso to be
noted that the role played by the Court is limited and circumscribed by a
number of conditions which include the requirement that "[tlhe Court
may only deal with a case after the Commission has acknowledged the
failure of efforts for a friendly settlement . . ." 4.
An examination of the involved system created by the Convention,
the closely related States which are parties thereto, and the history of its
drafting 5, cannot but bring home to one how extremely far-fetched
Applicants' contention is that a much more extensive and much less
~ell-defined systcni of "judicial super~~ision"%vac sreated in the atmoç-
phere prevailing in 1920, without even any discussion or debate on the
subject 6.
The case of the Diversion of the Water /rom the Meuse involved the
interpretation and application of a treaty between the Nethetlands and
Belgium, which, therefore, prescnbed the criteria for determining, and
adjudicating upon, the legal rights and obligations of the parties. Inas-
much as the subject-rnatter was a technical one, the Court naturally re-
quired assistance from the realm of the natural sciences with a view to a
proper understanding and application of the prescribed criteria ;but that
does not mean that natural sciences bÿ thernselves su+filied the criteria,
as would seem to be suggested by Applicants' staternent that "!t]he
International Court has similarly applied concepts derived from the
natural sciences .. ."8.
Applicants say, with reference to the concepts of abusde droit b,nnes
moeurs and ordre public in French Law, that-
"[j]udicial process in civil law systems similarly drawsupon humane,
moral and political standards as sources of law, and does so particu-
IarIy wiicre Iegal rights or duties are not expiicitiy defined 9".
\Veil. G. I,.. op. cil194..
1 IV,p. 483.
3 Weil. G. l,.op. cit.pp. 81-166.
' Article47 ofthe Convention (Weil,G. L.. op.cil.p. r5G).egardingenforcement
generally. vide also pp. 153-162.
On al1 these topicsvide Weil, G. L.,op. cil.passi*n.
In this connection it is relevant to note that. according to Applicants, ". .
Mandates were regarded, first and fvremost, as shat would be described, in the
universaily accepted current terminology, as 'human rights documents' ". IV,
P.491
Diversioltof Walev froin lltAleuse, Judgrirewt,1937, P.C.I.J., Series BiB,
No. 70. Vide IV,p. 486.
Vidc IV, p.486.
Ibid.p,.487. REJOISDER 01: SOUTH AFRICA 153
It is tme that many municipal systems require judges to apply con-
cepts such as those mentioned above; but such concepts, whether iound
in common law or in customary law, or whether formally embodied in a
code, nonnally possess well-recognized contents and spheres of applica-
tion in thc legal system concerned. Although a judge might in a particular
situation, depending on the nature of the case before him and the degree
of development of the doctrine to be applied, have to esercise a value
judpent regarding humane or moral considerations (but seldom
political ones), he would in the contest of municipal law (otherwise than
in international law) be influenced and guided by the factors referred to
by Sir Hersch Lauterpacht in a passage quoted below ', as well as nor-
mally being subject to appeal. The existence in private law systems of
wide principles of an equitable nature but of a recognized content, there-
fore provides no reason for supposing that the authors of the hlandate
would have intended to bestow on the Permanent Court. an international
tribunal, jurisdiction to apply a formula which does not involve only
matters of morals or ethics (on which judges of different nationalities may
\veUhold different views) but technical and political aspects of good
government, whicli normally faIl completely outside the purview of
judicial determination.
Respondent does not wish to mriltiply examples, since none of the
instances referred to by Applicants arid now under consideration could
bear directly upon the intentions of the authors of the Mandate (which
is the material issue for present purposes) =,and none of them is so closely
analogous to the Mandate as to render the interpretation contended for
by Applicants other than extremely improbable and unlikely to have
been intended by the said authors. In Respondent's submission the
exampleç on the whole tend to confirrn the extreme improbability of an
intention to require a court of law to exercise a task of judicial review in
respect of so wide and essentiallp political a function as the government
of a territory, witli no more precise formulation or criteria than the broad
and general one, inherent in al1 enlightened systems, that tl-ie powers
of legislation and government are to be exercised with a vieiv to pro-
moting to the utmost the well-being and progress of the inhabitants.
13. After quoting the examples considered in the previous paragraphs,
Applicants Say in regard to Respondent's argument:
"The .. .fallacy is that, for reasons unexplained, Respondent ap-
pears to assume that it is not as difficult forapolitical body to deal
with a generally stated obligation, or with one based upon economic,
socialor political considerations, as it (sic) for a Court.Human ex-
perience, both in respect ofnational and international parliamentary
bodies, belies such an assumption 3."
Respondent was under the impression that it had provided its reasons
forthis "assumption". They are, firstly that a technical body, such asthe
Permanent Mandates Commission, possessed the expert knowledge and
experience to collaborate in giving effect to provisions such as those ithe
Mandate which are now under consideration, whereas a court consists of
people versed in tlie law, who may not necessarily possess nny expert
Vide the secondpassagc quoted inpara. 14. infra.
Vide para.8.supra.
IVIP. 491. REJOIXDER OF SOUTH AFKICA I5.5
implicit in the guarantee af the inhetent rights of man against the
State. In reiation to such matters it is of special significance that
the judicial duty of applying the Iaw must be fulfilled by human
beings with their own philosophies and prcjudices. There is no means
of exciuding the operation of that human clenient. Within the same
national group there exist restraints iipon the unavoidable power
of judges: these are the cornrnunity of national tradition, the over-
whelming sentiment (from which judges are not immune) of national
solidarity and of the higher national interest, the corrective and
deterrent influence of public opinion, and, in case of a clear abuse
of judicial discretion, the relatively speedy operation of political
checks and remedies. None of these safeguards exist, to any com-
parable extent, in the international sphere. Al1 these difficulties
reveal the implications of the proposal to confer such powers, in
relation to the very basis of the national liie ofsovereign andin-
dependent States, upon a tribunal of foreign judges l."
15. In a later part of his book, the learned author advances a further
reason why international judicial review would probably not be accept-
able to many States:
"The latter [i.e., judicial review within the State] has been sub-
jected to widespread and emphatic criticism in the United States,
the principal country lvhich has adopted judicial review, and else-
where as conçtituting a denial of the sovereignty of the legislature
and of the people. Can it be expected that countries in which opinion
is sharply divided aç to the merits of review of their legislation by
their own tribunals wiil acquiesce in such review by an international
tribunal in matters touching practically al1 manifestations of their
national life? Can it be expected that countries which have no judi-
cial review within their borders and in which legal opinion and legal
tradition have resisted it vigorously and successfully, will entrust it
to an international tribunal? This is not a matter of the desirability
or otherwise of surrender of sovereignty on nlarge and unprecedented
scale. It isa question of the inherent merits of the system of judicial
review both in the national and in the international sphere '."
(Foatnote ornitted.)
In regard to the point made in the last passage, it isinteresting to note
the legal position in some ot the States which were prominent in the crea-
tion of the mandate system. The Belgian Constitution of 1921 and the
Italian Constitution ol 1848 (still in force at the time of the Peace Con-
ference) specifically excluded the interpretation of laws-and a forliori
any declaration of their jnvalidity-from the purvie\v of the judiciav
And, in the words of the same iearned author : " Judicial review of legisla-
tion iç contrary to the constitutional doctrine of France and, above all,
of Great Rritain, where the supremacy of Parliament is absolute "."
16. Judge Lauterpacht points out that some powers of the nature
referred to in the preceding paragraph have occasionally been exercised
by international and quasi-international tribunals, and he refers, inter
l Lauterpacht, H., An InlevrtalionaBillof the Hlghloj i?far(19451p~p. 12-13.
Ibid., pp.174-175.
Ibid.. pp. 187-188.Ij6 SOUTH WEST AFRICA
dia, to an Advisory Opinion relating to the Conrtitution of the Free
City of Danzig l. The learned author then continues:
"However, it must be borne in mind that, normally, the Con-
stitution of Danzig was placed under the guarantee,not of the Court,
but of the Council of the League, a flexible political organ. Neither
is it without importance that the State in question was a small
semi-independent comniunity set up to meet a comples political
situation. The position is different when it is proposed to confer
jurisdiction of that nature upon an internâtiorial court with regard
to Great Powers . ..l"
And after referring to some further instances, he concludes: "But there
is little persuasive power in these examples 2."
17. The reference in the passage, cited in the preceding paragraph, to
"a flexible political organ" becomes clearer when regard is had to a
quotation from the author's later work on this subjéct. in which he says:
"A court must, as a ruie, confine itself tothe ascertainment of the
legality or otherwise of the action complained of. Terfium nondatur.
It cannot propose a course of action which would render a forma1
hnding unnecessary. This can properly be done by an organ which,
although not disregarding the legai aspects of the cornplaint and
although empowered to pronounce on both facts and law and to
make a binding recommendation, can avail itself of the more elastic
procedure of conciliation and attempts at a compromise. . 3"
And he concludes :
"Finally, the creation of a non-judicial organ is neceçsitated by the
Eactthat social and economic rights . . . are not such as to lend them-
selves to enforcement by judicial process. At the same time they
cannot be permitted to remain a mere declaration of principle.
For that reason they seem to be the proper subject matter for a
general guarantee and supervision by a body of the kind here con-
templated operating through a procedure more elastic and informai
than ispermissible in the case of a court 3."
18. Respondent has quoted at some length from the works of Sir
Hersch Lauterpacht, because of the similarity between the problems
with which he was dealing, and those that would have confronted the
authors of the mandate system had they contemplated the introduction
of a system of judicial review 4, In this respect the changes in popular
attitudes towards such matters must also be kept in mind. It seems that
in more recent times the concept of international judicial review of inter-
na1 policieç is not generally regarded as being qüite as startling as for-
merly. It is interesting to note in this regard that between 1945 and 1950
judge Lauterpacht's own views regarding the merit and practicability
of international judicial review, softened somewhat =.
In the circumstances existing at the time of the foundation of the
mandate system, it seems unthinkable that the authorç of the system
Lauterpacht. H., A?tInternational BilO/ theRights ofMan (1945)p.. 13.
Ibid.,p.14.
1-auterpacht,H., International Law and Wuman Rights (rg50)p,. 377.
' As noted, Applicants refer to the Mandate asa "human rightsdocument"-
IV, Lauterpacht H,., International Law and Wuman Rights(1950).p.383. REJOINDER OF SOUTH AFRICA Ij7
would have been prepared to allow the Permanent Court to deliver
judgmeat on issues such as those arising from alleged contraventions
of Article 2,paragraph z, of the Mandate. It rnust not be forgotten that
the authors of the system included the prospective Mandatories, and
that some of them even had dificultp about accepting supervision by the
Council of the League, which was a flexible political body on which
they were strongly represented and in which the principle of unanimity-
so firmly insisted upon at the time-appiied. Havingregard to the difficul-
ties and disadvantages inherent in judicial review, which seemed so
decisive to Judge Lauterpacht in 1945 and even in 1950, and further to
the fact that the Court could arrive at its decisions by a bare rnajority,
subrnission to such review must in 1920 have represented to the States
concerned an alarming and unprecedented surrender of their rights of
administration and legislation. Consequently one cannot imagine that
they would have accepted it in 1920, not only without objection, but
even without discussion.
~g. For the reasons set out above, Respondent's submission that no
jurisàiction was intended to be bestowved on the Permanent Court to
adjudge alleged infringements by the Mandatory of Article 2, paragraph
z, of the Mandate, is not affected by anything said in the Reply, which,
in fact, does not deal therewith directly at all.
C. On what Legal Basis Could a Court Determine Alleged Violations of
Article 2, Paragraph 2, of the Mandate?
20. Respondent's alternative argument, which would require con-
sideration only on thc basis that the Court does possess jurisdiction to
adjudge alleged infringements of Article 2, paragraph z, is founded on
the follovcingsimple propositions 1:
(a) Respondent Gai granted "full power of legisLation and adminis-
tration". Such grant necessarily entailed that Reçpondent was
required and entitled to use its discretion as to the need for and
the manner of the exercise of its powers.
(b) It isof the essence of a discretionary power that an act purported
to be in exercise thereof is not illegal unless it is contrar~? to some
legal provision regulating such exercise. or exceeds the limits
expressly or by implication placed upon the power. No regulalor~l
provisions were irnposed in respect of Respondent's powerç under
the Mandate 2, thiis leaving onlp the question as to the nature of
the limitation irnposed by Article2, paragraph 2.
(c) The only limitation placed by Article 2, paragraph 2, on the dis-
cretionary power vcsted in Respondent was that such power should
be exercised for the purpose of promotirig to the utmost the well-
being and progress of the inhabitants of the Territory.
(d) Consequently the Court can determine whether a legislative or
administrative act or policy constitutes an infringement of Article
2, paragraph 2, only by examining whether or not the exercise of
discretion involved in such act or policy, was directed at the pur-
pose of promoting to the utmost the well-being and progress of the
l JI,pp.384-392.
For present purposes the limitations expressed in Arti4 and 5of the Man-
date for German South-WestAfricaare not relevant and atherefornot mentioncd SOUTH WEST AFRICA
inhabitants. Such an examination would, in the circumstances,
involve an enquiry as to the good or bad faith of the Mandatory.
(e) The conclusion set out in subparagraph (d) is strengthened by the
consideration that, whenever there is scope for honest diflerence of
opinion (as there oiten muçt be) on the question whether a particular
legislative or administrative measiire or policy does or does not,op
will or willnot, itt factfiromote well-bei ang progrcss to the ztlmost,
there are no legal norrns-as distinct from political or social views
or theories-which a Court can apply for giving preference to
any of the conflicting opinions to the exclusion of the others.
Consequently, the only legally prescribed basis upon which the Court
can determine whether the Article has been vioiated, is to enclilire
whether sucli measure or policy was intended to prowzotewell-being
and $rogress to the z~tmosi l.
21. 'Thestarting point of Respondent's above argument is the demon-
stration that its powers in terms of Article 2 of the Nandate were of a
discretionary nature. This was established in the Counter-RIemorial by
interpretntion of the mandate documents, and \vithreference to strong
autliority 2. To the authorities thcre cited may be added the following
statement by Bentwich:
"No attempt is made in the alandate documents or by the Man-
dates Commission to lap down any particular system of governrnent
applicable in these territories. The Mandatory in this respect has
a free hand, and may introduce çuch measures of autonomy as he
thinks fit. The guiding prirrciple is that the Government must have
in vim the interests of the native inhabitants. Great variety in the
system of administration, in fact, exists,even within a single country
under mandate, and some of the mandated territones have indeed
been divided by the Mandatory for legislative and administrative
purposes 3." (Italicsadded.)
Given the premise that Reçpondent's pou7er of administration and
legislation in terms of Article 2 of the hlandate was of a discretionary
nature, the rest of Respondent's argument follows purely as a matter of
logic. Thus, as Respondent pointed out in the Counter-Rlernorial, it is
logically inherent in al1cases where courts have to decide on the legality
or otherwise of the exercise of n discretionary power, that the court is
not entitled to substitute its own discretion for that of the authority
in which the discretion has been confided 4.As authority, Respondent
referred to an English work, which dealt with the attitude consistently
adopted by British courts However, the principle, being one of logic,
is universally applicable. Tliuç one frndç the identical concept expressed
' It is conceivabfe that a court could, exceptionally. corne to a factuak conclusion
that a particularrneasure or policy isso manifestldetrimental to well-being, or
not conducive to progressas to leavc no room for honest differencc of opinion that
it does not and will not prornote well-being and progress, either to the utmost or
at all. This would, however.amount exactly to a hnding, by inference. that the
measurc or policy could not bona fide have been intended to bring about such pro-
motion. to the utmost or atall.Videparas. 27 and 39, infra.
Vide II, pp. 387-389.
Rentwich, S., The Mandates Sysicm (rgp), p. $3.
' 11,p. 392.
' DeSmith, S. A., JudicioReview ojrld~ninisfrafivcAction (195p.167. REJOlSDER OF SOUTH AFRlCh I59
in continental systems. In a recent cdition of an authoritative French
work it is said:
". ..au cas de pouvoir discrétionnaire le choix fait par l'adniinistra-
teur de la mesure prise, c'est-a-dire l'objet de l'acte ne pourra pas
ktre illégal (ricondition bien entendu que la mesure prise ne fût pas
en elle-mêm enterdite par la loi) ; le contrôle du juge ne pourra pas,
de ce point de vue, s'exercer, sinon le juge se substitiiernjt a I'ad-
ministrateur pour apprécier l'opportunité de ia mesure, appréciation
que la loi avait précisément entendu laisser a l'ndmiiiistrateur 1".
Sirnilar principles are applicable in Cermany 2,Italy "and other conti-
nental systems '.
22. IEit is not tlie function of a court to express an opinion on the
merits of a particular discretionary decision, nor to enforcc such opinion
on the authority esercising the discretion, what basis for interference then
erists? Logicdictates that a court can do no more than enforce cornpliance
by such authoritjr with the provisions governing the esercise of the
discretionary power. This rnay take a number of differeiit forms, but
essentially it arnounts to this, narnely that the court may enjoin action
wh:ch is required by the provisions relating to the discretionary pouper,
or that it may prohibit or annul action which is contrary to or in excess
of the provisions relating to the discretionary power. As a matter of logic,
no other action by a court would follow from being required, in the
ordinary course of itsjudicial duties, to pronounce upon the legality or
otlier\vise of the esercise ofa diçcretionary power. It is true that municipal
courts sometimes esercise more extensive powers of review, and rnay in
pursuance thereof apply other criteria, such as for example unreason-
ableness; but thnt is ço by virtue of aspecitîc grant of such powers, which
may be exercisecl only in the particular instances in respect of which
the said powers were granted and in accordance with the provisions
of the grant. Since no such criterion has, however, been laid down with
respect to possible review of Respondent's powers under Article 2 of the
Alandate, such departures from the ordinary rule may be left out of
account for present purposes.
23. In the present proceedingç, Applicants ask for orders declaring
that certain conduct or policies are in violation of Article 2 of the Man-
iDe Laubadère. A.. Trait6 El6,nenlaire de Droit Administratif (1963)214.The
following is a free translatiof the quoted passage:
".. .in the caseof discretionary power, thc administratur'scbuice regarding
the rneasure to lie adopted, that is tsiry, thcontent of the act, cannot be
initself prohibited tlaw);judicial controt cannotbeexercised from this point
ofview rvithout the judge substitutinghimçelf for the administrator in de-
to laveinprecisely tn the administrator." determination which the law meant
Vide aIsoVenezia, J.. Le Pouuoir Discrktior~nrri(1959).p. 137.
Fofsthoff. E.. Lehfbuch des Verwalttingsrech~(1961).Vol. 1, p.84.
Caleotti, S., The Jetdicial ConfrofPublic .4ttihorilies inEngland and in Italy
(1954)~pp. 102-162.
* FOI'a coiivenient cornparison of the laws of France, Belgium, Luxembourg, the
Netherlands, Ttnlyand Germany inrespect of dkfouynenrenlde pouvoir, vide Lagrange.
m. ,Chronique Européenne: COUT de Justice de la Lommunauté Européenne du
charbon et de l'acier". Revudu Droit public et de la Science PolitiqeuneFrance àt
I'Etranger.No. 3 (juillet-septembre1g55)p .p. $70-63i at pp. 553-593.160 SOUTH WEST AFRICA
date, and should thereforc cease. It follows from the logical priricipIes
inherent in the nature ofdiscretionary powers, that the Court can accede
to this request only if itbe shown that Respondent has, in engagirig upon
such conduct or adopting such policies, acted contrary to, or has exceeded,
the provisions of, or relating to, the discretionary power. Respondent is
not limited in the exercise of its discretion by any requiremerits of form
or procedure, nor are there any subject-matters which are heyond its
competence l.Onceit is conceded that Respondent's acts were, as far as
form and procedure were concerned, valid, and that the!, related to
subjects falling within its competence, what other basis for possible
illegality remains? Al1that remain are the provisions of Article 2, para-
graph 2, of the Mandate. Respondent has subrnitted that Article 2,
paragraph 2, from its very nature, and its inter-relationship with Arti-
cle 2,paragraph 1,does not contain an exact formulation of an objective
standard to be complied with by the hlandatory, but a broad expression
of the purpose to be pursued by it =.This submission uTaç based on an
interpretation of the relevant texts, as well as on sound authority 3.
Tt will be apparent that the provisions of Article 2, paragraph 2, in
prescribing a purpose to be pursued, do not thereby neutralize or elimi-
nate the discretionary element in Respondent's powers of government.
The question of method to achieve such a broad purpose as to "promote
to the utmost the material and moral well-being and social progress"
of the inhabitants of mandated temtories, is from its very nature one
on which informed and honest opinion could differ. The Mandate could
have prescribed a method or methods, but did not. Similarl!. it could
have prescribed precise and 'readily applicable norms or standards for
measuring mhether the Mandatory was complying with its duties, but
again it did not 4.The only reasonable constmction therefore isthat the
hlandatory, to which full powers of government were granted, should in
its discretion determine questions of method-the contemplation being,
of course, that it would be aided and guided, inter alia,by the prescribed
supervisory organs.
It follows necessanly tliat Kespondent's administrative and legislative
acts can be declared illegal only ifsuch acts were not directed at the
purpose prescribed in Article 2, paragraph 2, of the Mandate, viz., to
"promote to the utmost the material and moral ïvell-being and social
progress of the inhabitants of the territorf"' In the words of the Chief
Juçtice of Australia :
"If a power is conferred in terms which require it to be used only
for a particular purpose, then the use of that power for any otlier
purpose cannot be justified. When a Iegislative power is defined by
reference to purpose, legislation not directed to that purpose will
be invalid ...
Apart again. from the limitations, not relevant for present purposes, in Articles
3-5 of the Mandate for German South-West Africa.
=11,~~~.385-389.
Ibzd.;vide afso Part II, Chap. II. paraII,supra (references toThe Jlandates
Syslem-Origin-Principles-Applica (1ion)); and to the Hyrnans Report,
L. ofh'. , .1.1920 (XO. O),pp. 334-341,andthe reference to Sentwich in para.21,
supra.
Save again forArticles3-5 of the Mandate for German South-!frest Africa.
'Avlhur Yates and Company Proprietary Limiled v.The VegetableSccds Cont?itillee
and Othevs,1945-1946, 72C.L.R. 37 zt pp. 67-68, REJOINDER OF SOUTH AFRICA 161
Since this principle follows as a matter of logic from the nature of
discretionary powers limited by reference to purpose, it is not present
only in common law systems, but is also found in civil law systems.
Indeed, it is basic to the whole concept of détournement depouvoi r,hich
play5such a large role in administrative law on the continent of Europe l.
24. Tlie only possible test to be applied by this Court is, accordingly,
whethcr 12espondeni has, or has not, exerçised its discretion for the
purpose of promoting the interests of the inhabitants of the Territory.
This is equivalent to saying that the test is whether Respondent has
actecl in good or bad faith-i.e., in the circumstances of a case Iike the
present, where there is no realistic scope for a genuine misunderstanding
on Respondent's part of Ihe nature and extent of the power conferred
and of the purpose for which it is to be esercised.
Thus, for instance, an eminent English judge said:
"\i7hen, however, it is said that the court must not interfere with
the esercise of that discretion by the statutory body which has the
power vested in it unless the statutory body is using the power
vested in it otherwise than in good hith, 1think that means, other-
wise than for the purpose for which those powers are vested in it 2."
And a learned British Law Lord expressed himself as follows:
"1 take itto he clear that there is a condition implied in this as
well as in other instruments which create poupers,namely, that the
powers shall be used bona fide for the purposes for which they are
conferred 3."
zj. Although Applicants purport to present argument in reply to
Respondent's proposition that ".. .compliance with [Article z] could be
judged by the Court only upon the basis of Respondent's good or bad
faith" +, they do not deal specifically with the above argument, nor do
they indicate clearly on which points they join issue with Respondent.
Save for their attempt to introduce "norms and standards" into the
Mandate 5, they do not even try to meet liespondent's clemonstration
that its powers under Article 2 were of a discretionary nature, but appear
to content themselves with comments such as the following, viz.,
". . .there is at best a tenuous distinction bet~v-een a contention
that the administration of the hlandate is 'left to the discretion of
the hlandatory', fvee O/ iliternationalsupervision and accountability
and a contention that the Mandate created a relationship between
Respondent and the Territory 'close to annexation' 6". (Italics
added and footnotes ornitted.)
Respondent does not appreciate the relevance of this consideration,
and particularly not of the italicized words. Respondent's view that the
Mandate created a situation mhich, in the day-to-day administration of
the Territory, was not far rernoved from annexation, was obviousIy
' VideLagrange, tsbi supra.
Vnughnn Williams, L.J. itHe% v.Brighton Corpovatiolî; Expayle Shoosmith,
1907, Vol. SCVT, L.T.12 762 at p.763.
Lord Lindley in Ceireral Assamblyof Free Church ofScolland and Olhevs V.
Lord Overtotin andOthers,rgoqA.C. 515 atp.695.
' IV, p.477.
' As to which, videparas. 26,29-33, infra.
IV,p. 256. A similarstatement appears at p.25.1.162 SOUTH WEST AFKIC;l
baçed on itsinterpretation of the estent of the Alandatory's poivers of
administration and legiçlation l.That was, hoivever, the position ~thich
esisted from the beginning, also during the life-time of the League. The
interpretation of Article 2 can hardly be different now that international
supervision and accountability have fallen away. It is consequently
assumed that Applicants merely wish to point to the consequences of the
lapse of supenrision by the League if Respondent's siibmission regarding
its discretionary powers were to be accepted. However, this Court cannot
alter such consequences by giving to Article 2 a construction different
from that which it would have had prior to the dissolutioii of the League.
Without pin-pointing (and possibly even withoüt appreciating) the
nature of their problem, Applicants nevertheless experience grave
difficulty in formulating an argument which can plausibly be said to
cope with the consequences of the discretionary element inherent in
Article 2 of the Mandate. In the succeeding paragraphs Keçpondent ~ilill
sliow how they have grappled with this problem from the commeiicement
of the present proceedings, only to be forced on each occasion to a con-
clusion which is in substance the same as that reached by Respondent.
26. In their Memorials Applicants, at the outset of their treatment of
alleged violations of Article 2 of the Mandate, confessed that-
". .. differences of opinion could arise aç to close or doubtful issues
concerning the application of the terms of Article 22 of the Covenant
and Article 2 of the Mandate 2";
but they contended that-
"[iln the present case, however, the issues of fact and law, and of the
application of law to fact, do not involve conjecture, The violation
of the duty to promote 'material and moral well-being and social
progress' is beyond argument 2".
How did they seek, in their Memorials, to get out of the conjectural
sphere, where "differences of opinion could arise"?
In the first place. they immediately proceeded to say that "[alny
doubt ... is resolved in the light of currently accepted standards as
reflected in Chapters XI. XII and XII1 of the Charter of the United
Xationç" 2.
In these provisions of the Charter, Applicants çoiight to find certain
"clear and meaningful norms rnarking the duties of the Mandatory" 3,
which they formulated and listed in the Memorials '.These "norms" did
not, however, assist Applicants in their atternpt to remove this case from
the discretionary or conjectural sphere. As demonstrated by Respondent,
the "norms" amounted to no more than matters to which it could (with
sorne qualifications) be said that the Mandatory should have regard as
ztltimate aims in exercising its discretionary function under Article 2 of
the Mandate 6.They did not indicate methods to be applied by the Manda-
tory in realizing the aims, and consequently didnot provide any objective
l Vide Part II.Chap.II. para. 5,supra.
1, p. 104.
Ibid.,p. 107,
' Ibid., pp. 107-103.
"ven iftheycould beread into the Mandate, which Respotident disputed-
vida para. 42, infra.
VideII, pp.397-398. HEJOIKDER OF SOUTH AFR1C.A 1~3
criterionfor assessjng the legality of Respondent's policics and practices.
Consequently, since Respondent could in dealing with the facts, dernon-
strate that its policies were directed nt pursuing such aims, these "clear
and meaningful norms" brought ilpplicants no Iiearer to the result of
"beÿond argument".
27. But a second method was employed by Applicaiits in the Memorials
in an attempt to escape the conjectural sphere, where "differences of
opinion could arise", and thus to bring them to the point of "beyond
argument". Their contention was that Respondent ". .. has not onIy
failed to promote 'to the utrnost'. .." but ". . . has failed to promote ...
in any significant degreewhatever" '.(Italics added.)
This was also rendered as ". .. has not even made any substantial
effort to do so" 2,or ". .. has made no notable effort to do so" 3.On the
contrary, said Applicants, Respondent's ". .. efforts ... have in fact
been directed to the opposite end" *, in that it:has deliberately and
systematically oppressed the Xatives for the benefit of the Europeans 5.
I3ythese means, Applicants reached their conclusion that there was a
"polar disparity" between ReSpondent's duties under Article 2 of the
Mandate and its conduct in the administration thereof 6, as opposed to
"close or doubtful issues" which might otherwise have arisen.
It will be patent that al1 this amounts exactly to allegations of bad
faith in the sense under discussion, Failure to make "any substantial
effort"or "notable effort" to achieve the prescribed purpose, and in fact
directing "efforts ... to the opposite end", can only mean that there has
been no bona fide esercise of the discretionary function, but inactioriand
action in an unauthorized sphere, with an unauthorized purposein mind,
known to be such and therefore malu fide.
28. In the result, Applicants' attitude in the Memorials regarding the
discretionary element in Article z, did not appear to differ substantially
from that adopted by Kespondent. Their "clear and meaningful norms"
related merely to tlie pur$ose to be pursued by Respondciit, and did not
prescribe any objective rules regarding methods to be adopted in that
regard. As regards the methods employed by Respondent, Applicants'
allegations amounted to a charge of bad faith in the sense aforestated.
And they made no suggestion whatever as to any basis for juridical
determination of the "close or doubtful issues" which could arise if they
should fail to eçtablish the charge of bad faith.This then wasthe position
asit appeared from the Memorials, and in the Counter-Rlemorial Kespond-
ent answered Applicants' charges on that basis.
zp. In the Reply, as has been seen Applicantç commence their treat-
ment of this subject by denying that the dispute between the Parties
"hinges on the issue of Respondent's 'good or bad faith', rather thanupon
an objective evaluation of its conduct" 9. And they state that "Respond-
1,pp. 108 and 162.
2 Ibid., p.130.
3 rbid.p.. r43.
4 Ibid...o.108.
' Vzde II, pp.392-39.1
fi1,p. 166.
' Ibid.,p. 104.
Vide sec.A. paras. 2-4.supra,
IV,p. 257. (Italics added.)164 SOUTH \l'EST AFRlCA
ent'ç policy and practice of apartheidfails to promote the well-being and
social progress of the inhabitants of the Territory" l.
Their problem, however, remains, namely how to establish by meanç of
an "objective evaluation" that a particular policy or practice does not
promote well-being and progress to the utmost-a matter which is
essentially one of opinion and evaluation incapable of objective proof:
and it is perhaps syrnptomatic thereof that, apparently in order to avoid
"close or doubtful issues" and the problems inherent therein, their
proposition as above-cited is directed not at failure to promote "to the
rtmosl", but, so it seems, at failure to promote at alL2. As will be shown
thejr basic approach to this problem rernains the same as in the Memorials.
Thus Applicants in the Keply, too, in the first place, attempt to find
some criterion which could, by objective application to Respondent's
policies, provide a conclusion of violation of the Article in question. In
this regard they Say that Respondent's policy-
". .. violates Respondent's obligations, as çtated in Article 22 of the
Covenant of the League of Nations and in Article z, paragraph 2,of
the Mandate, as measureci by the relevant and generallyaccepted LegaL
normsand standards described in the Memorials and in this Reply 3"
(italics added) ;
and that certain (factual) "assumptions" underlying Respondent's policy
are, inter alia,
"... violative of noms, as accepted by international custom and
as reflected in the general principles of law univerçally recognized by
civilized nations 4". (Footnote ornitted.)
They refer to their analpis in the Reply of "... the normative and
objective legal standards governing the interpretation and application
of Article 2, paragraph 2, of the Mandate. .." 5.and they contest the
contention which they attribute to Respondent as their Proposition
NO. 4, that ". .. there exist . . . no legal norms or standards for judging
the actions which Applicants contend to be in violation [ofArticle 2 of the
Mandate]" 6.
30. Applicants' attempt to find some objective legal norm orstandard
by which to measure Respondent's policy, is, as haç beeri seen, nothing
new. -4sregards the contents and sources of the suggested norms, however
the Repli seeks to make out an entjrely new case. It will be recalied that
in the Jlemorials Applicants relied upon a series of "clear and meaningful
norms" which they sought to derive from certain provisions of the United
Nations Charter ?. Respondent's demonstration that these so-called
norms, cven if they existed, did not materially affect the discretionary
nature of Respondent'ç powerç 7,seems to have sounded their death-
knell. No attempt is made in tlie Reply to refute Respondent's argument
in this regard. No further reliance is placed on Article 76 of the Charter.
lIV, p.277. {Italics added Saveforthe word "apart/ieid".)
Vide para. 27supra, and para. 39,infra.
IV,p. 519.
+ Ibid.. p. 271.
' Ibid.p. 261.
Ibid.p. 477.
Vide para. 26SU~YU. REJOINDER OF SOUTH AFRICA 165
which was one of the sources of these "clear and meaningful norms" 1.
And in regard to the other Article relied upon, viz., Article 73, Applicants
Say:
"lt isnot necessary, for the purposes of the present Proceedings, to
consider in detail the scope of Respondent's obligations under
Article 73 of the Charter, inasmucli as Applicants' Subrnissions do
do not allege violations by Respondent of such obligations 2."
Keference will be made below tothe role now alieged to be pIayed by this
Article 3.Where Applicants in their RepIy still refer to their "clear and
meaningful norms", they do soonly by wüy of forma1reaffirmation 4.For
al1 practical purposeç, these "norms" may consequently now be dis-
regarded.
31. In their Keply Applicants now introduce a new norm, namely their
so-cailed "norm of non-discrimination or non-separation". This suggested
norm, unlike those relied upon in the TvIernorials,would, if it existed,
provide an objective criterion for measuring Respondent's policies.
However, for the reason stated above 5, Kespondent submits that the
"nom of non-discrimination or non-separation" does not esist, certainly
not as a part of the Mandate.
32. The question then arises whether the "norm of non-discrimination
or non-separation" represents AppIicants' only attempt at introducing a
freshobjective norm or standard in their Replp. It is remarkably diacult
to answer this question. Reference has been made to Applicants' pur-
ported reliance on the exictence of (in the plural) "legalnorms and stand-
ards", or "normative and objective legal standards", which are allegedly
set out in the Reply 6. In various parts of the Reply there are further
suggestions that therc exist, apart from or in addition to the alleged
"norm of non-discrimination or non-sepamtion", standards which can
be applied by a court in determining whether or not particular policies
"promote to the utmost". Applicants Say, for instance, tliat, "in dealing
with political, economic or humanitarian issues",
". .. courts-both international and national-customarily apply
knowledge extracted frorn experience, from social, physical and
political sciences, and from al1other sources from which man derives
guidance in the conduct of his Iife and relationships with others '";
that -courts ". . . draw upon humane, moral and political standards in
deriving the sources oflaw" and that-
"ijludicial process .. . draws upon humane, moral and political
standards as sources of law, and does so particularly where legal
rights or duties are not explicitly defined
It is to be noted that the above contentions are advanced by Applicants
in purportcd answer to Proposition No. 3 as formulated by them, which
Vide 1,p. 107.Art, 76(6) is referred at IV, p.501,but purely with reference
to the contentsoftrust territaries agreements.
IV,p. 517,
Vide para 35. injra.
' Vide, e.g.IV, pp. 404and 519.
Vide Part III. sec. B. supro.
l'idepara.29, supra.
' IV, p. 485
Ibid.,p. 487.1G6 SOUTH WEST AFRICA
includes Respondeiit's argument that "cornpliance with [Article z] could
be judged by the Court only upon the basis of Respondent's good or brid
faith" 1.
Furthermore, in seeking to show that "Respondent's policy and prac-
tice of apartheid fails to promote the wel1-beingand social progress of the
inhabitants of the Territory ", Applican tsrely, inter dia, on the followjng
"relevant evidence", viz., "Ljludgments of qualified persons", "[olfficial
views of Governments" and ''[o]venvhelmi~igweight of contemporary
authority in the political and social sciences"2.
In a particular sphere, i.e.regarding security of the person, riglits of
residence and freedom of movemeat, Applicants contend that findin s
and conclusions of the Committee onSouth West Africa and of the I.L.8 .
Ad HOC Committee on Forced Labour ". .. confirm a generally accepted
current international norm or standard, according to which Respondent's
obligations should be measured . . ." 3.
To summarize, it would appear that Applicants are relying, in addition
to the "norrn of non-discrimination or non-separation", also on further
undefined "norms and standards".
33. Like the "norm of non-discrimination or non-separation", the
above-mentioned undefined "norms and standards" are said to have
arisen subsequently to the creation of the Mandate. Thus Applicants Say:
"The obligations created by Article 22 of the Covenant and the
Mandate must, accordingly, be construed in the light of current
standards, as determined by conternporary knowledge, conditions
and requirements 4" ;
they refer to the ". ..practical necessity and wisdom of applÿing current
standards in interpreting obligations, such as those embodied in the
Mandate. . ." ; and they Say that-
"[tlhe relevance of the evolving practice and views of States, growth
of experience and increasing knowledge in the political and social
sciences, to the determination of obligations bearing the nature and
purpose of the Mandate in general, and Article 2, paragraph 2,
thereof in particular ... is of the very essence of the obligation
itself6".
34. In considering the relevance or significance to be attached to the
undefined "norms and standards", Respondent isat the outset faced with
the problem that their alleged juridical nature, like their alieged content,
is not specifically examined or dealt with in the Reply. In the absence of
any specific contentions on Applicants' part, Hespondent therefore has
no option but to examine this matter purely on principle in the light of
the broad purpose for which Applicants rely on the undefined "norms and
standards".
In order to have any relevance at al1to Applicants' case, these "norms
and standards" must in some way define, esplain or give content to
Respondent's obligations under Article 2, paragraph 2,of the Mandate.
It wouid appear, however, that the expression "norms and standards" in
IV,p. 477.
Ibid.,p.277.
Ibid., p.475.Vide alsopp. 413-414 and 417-415
' Ibid.. p.514.
Ibid., p. 513.
Ibid.. p512. REJOINDER OF SOUTH APRICA 1~7
tliis contest embraces two esçentially different concepts. In the first
place, the expresçion "norrns and standards" rnap be used to signify
legal rules which in objectiveterms define Respondent's obligations under
tlie Mandate. For convenience Reçpondent will refer to such "norrns and
standards" as "legal norms", or just "norms". The specific provisions of
Articles 3 to 5 of the Mandate would then comprise legal norms in this
sense. It is apparently in this sense also that Applicants use the expression
"norrn ofnon-discrimination or non-separation". And itis only a legal
norm in this sense that could provide a criterion which could,by objective
application to Respondent's policies, determine whether or nota violation
ofArticle 2, paragraph z, has been committed.
However, the expression "norms and standards" may be used also to
connote an entirely different concept. It may refer only to practices,
policies or theories of government applied by States, or advanced or
propagated by politicians, experts, authorities, scientists, moralists, etc.
For convenience, and in order to distinguish thiç concept from that
espressed by the term legal norrn, Kespondent willrefer to such practices,
policies or theories as "standards" l.
It is apparently in this sense that Applicants refer to "the most minimal
standards universally accepted [except by Respondent} as governing the
relations between a State and its subjects" 2, and to "the generall
accepted political and nioral standards of the international cornrnunify"
35. It will be apparent that it is in their legal effect rather than their
possible content that legal norms differ from standards. By definition,
standardsare not legal rulesobjectively enkrceable against Respondent,
inasmuch as the acceptance of particular standards even by a large
number of scientists, politicians, authorities or States, cannot,per se and
iit the absence of consent on Respondent's part, render such standards
legally binding upon Respondent. Since the present discussion concerns
contentions advanced by Applicants in an attempt at finding objective
criteria for evaluating Respondent'~ policies, it follows that standards do
not cal1for consideration here; these will, hoxvever, be ciealt with later'.
At present, it is onlp as regards possible objective legal noms that Ap-
plicants' expression "norms and standards" callç for comment.
Before seeking to apply any siich nom, App6cants would of course
have to estabtish that it is of a legal nature. In addition, however, no
such norm can be invoked in these proceedings unless it formed a part of
the provisions of the Mandate 5.Since Applicants' undefined "norms" ,
like their alleged "norrn of non-discrimination or non-se aration", clearly
and admittedly were not included in the provisions Of the Mandate as
originally framed, they could subsequently have inhered therein only
by virtue of some process of amendment of the Mandate. For the reasons
already given, it is submitted thatno such process of amendment occurred
in respect of the "norm of non-discrimination or non-separation".
l The result is that Respondent hns separated the concepts comprehended in the
expression "norms and standards" and called them "norms" and "standards"
respectively.Keespondent must not, however, be understood as suggesting that
Applicants have inany way clearly distinguished either between the terms or be-
tween the concepts expressed by them.
' IV,p. 512.
Ibid.. p. 271.
' Vide para.39,infra.
l'idesec.B,para. 3, supra.168 SOUTH WEST AFRICA
The same considerations apply a fortic~i to Applicants' undefined
'norms". In the first place, there is the very impoi tant circumstance that
they are undefined. One cannot conceive of an amendment of the Mandate
consisting of the introduction of "norms", the content of which is not
stated. Secondly, Applicants have not produced any evidence that
Respondent has consented tothe introduction of undefined "norms" into
the Mandate. Their only attempt in this direction consists of a contention
that certain unformulated "standards" (apparently not used in the re-
stricted sense appiied tothis expression by Respondent) which may have
been laid down by Article 73 of the United Nations Charter, "in so far as
the provisions of Article 73 ... may be in advance of what was current
thought in 1920" ',should be read into the Mandate =.This contention
hasalready been dealtwith 3,and for the reasons there set forth Respond-
ent submits that it iswithout substance.
Thirdly, the "evidence" adduced by Applicants, consisting largely of
the views of "qualified perçons", "govemments", and "contemporary
authority in the political and social sciences" 4, does not even purport to
establish the existence of any "norms" (or, for that matter, "standards").
This evidence frequently consists rnerely of condernnation of Respond-
ent's policies, or certain aspects thereof (including aspects not applied in
South West Africa) no matter on wbat grounds-the grounds being very
often mere wrong appreciation of the facts, as will be shown.
36. It may be convenient to refer at this stage to a further alleged
source of "norms", namely the Permanent Mandates Commission. Appli-
cants say that, as a consequence of the Commission's functions of super-
vision in respectofMandatue adrninistration,
". . .there evolved perennially what rnay be described as a 'concrete
content' of Mandates, the substance and form of which are embodied
in the Commission's minutes 5".
This "concrete content" was ailegedly reflected in pronouncements of
general principles, but was more frequently, according to Applicants,
". . . developed through continuous application of general criteria to
concretefactual situations"
In this manner, it is contended, the Commission-
". . . developed and interyreted legal principles, based upon the
Mandate instrument and the Covenant, and applied such legal
principles to specific situations 6",
and developed-
". . .a body of practice and doctrine which furnish the basis, inter
alia, for judicial determination concerning the scope and nature
of Respondent's legal obligations under the terms of the Mandate
for South West Africa 6".
Quite clearly the Permanent Mandates Commission never performed a
function of the sort contended for by Applicants in the above passages.
Applicants seek to justify their contention by repeatedly asserting that
lIV, p.517.
2Ibid.,pp. 516-518.
3 Videsec. B, paras.30-35,supra.
Vid~para. 32, supva.
'IV, P 251.
Ib~d., p. 253. REJOIEDER OF SOUTH AFRICA 1~9
the Commission was a "quasi-judicial body" l, which, in a sense, it of
course was. However, in order to justify their contention that the Corn-
mision gave a "concrete content" to mandates, Applicants would have
to go further,and show not only that the Commission wasa quasi-judicial
body, but also that it was a legislative or quasi-legislative body-at least
in the sense that, with prior consent of the interested parties, including
the Mandatories, it could alter or amend the contents of the mandates.
This Applicants have not sought to do.
In fact, the task of the Commission \vas, as Applicants point out 2, a
twofold one of "supervision and CO-operation". The nature of the two
aspects of the task was summed up and contrasted by Quincy Wright as
follows:
"Iii supervising the mandates the Commission has felt obliged to
limit its criticismby law. It does not censure the mandatory unless
the latter's orders or tlieir application are in definite conflict with
the mandate or other authoritative text, but ifsuch a conflict is
reported by the Commission and the report is adopted by the Coun-
cil tlie mandatory is bound to recognize it. It becomes an author-
itative interpretation of the latter's obligations ...
In CO-operating with the mandatories, however, though the
League's powers are more limited, the scope of its suggestions is
infinitely wider. It has not considered itself limited by authoritative
documents but has formulated standards of good administration
from the widest sources, and suggested whatever practical steps it
cleerns expedient to give them effect. Such suggestions, however,
even when indorsed by the Council, never have more than the
cliaracter of advice. The mandatory is free to differ from them,
though if based on an adequate understanding of the situation he
wiil do urell to consider them 3."
'I'heformer task (supervising of Mandates) was a quasi-judicial one,
whereas the latter (CO-operation with the hfandatorics) \vas not. A recom-
mendation made by the Commission in performing its task of supervision
malr, if adopted by the Council (and perhaps even ifnot), be regarded as
an authoritative interpretation or application of the provisions of the
Mandate. As such it may have had precedential value in later proceedings
before tlie organs of the League or even the Court, but it would of course
not be binding on any of them. In practice such interpretations normally
related to the specific duties incumbent upon the hlandatories under the
various mandates. The Commission did not attempt to give a specific
content to the general provisions such as Article 2, paragraph 2, of the
Mandate for South West Africa-jndeed, they evpressly recognized their
inability inthis regard, acknowledging that bvidelydifferent policies couid
be encompassed by the terrns of the Article 4.
In regard to the Mandatories' duties under Article 2, paragraph 2,
of the Mandate for South West Africa and similar provisions in other
mandates the Commission was riormally called upon only to give practical
l IV, pp.247. 248, 249.251 and 253.
Ibid.. p250.
' \Vright, Q.ATa~rdatesunder fhe LeagueofilTaiio(n1s930).. 197.
* Vide nuthoritiesquoted in II,pp. 387-388 and particularly the statement by
Il.Orts read in thecontext of the debate as a whole (P.1lf.C.. Min1);. p. 134).
Vide also threferenceto Bentwich, para, ax,supra.170 SOUTH WEST AFRICA
advice pursuant to its functions of CO-operating with the Nandatories.
Such practical advice, although of great weight as the expression of
opinion of an expert and eminent body, was clearly not binding on the
Mandatory to whom it was addressed, and a fortio didinot lay down legal
rules to be npplied in future by al1 Mandatories. At lnost it set forth
"standards" (in the sense used by Kespondent) to which the Alandatories
may have been obliged to have regard in accordance with the priiiciples
considered below '.
It will be apparent, therefore, that neither of the two functions per-
forrned by the Permanent hlandates Commission served to give a "con-
crete content" to the provisions of the Mandate, and in particular not to
Article 2, paragraph z, thereof.
Applicants suggest, to the contrary, that every comment of the Corn-
mission rnust be taken as the application of a rule of law (apparently
created ad hocby the Commission itself).
Thus they Say: "The Commission . .considered itself a quasi-judicial,
non-political body, the function of which was to apply standards of a
legal nature to specific policies and acts" 2,and "The Commission, as a
quasi-judicial body, gave expression to objectively determined con-
cfusions of a IegaInature .. ."s.
Ifis true that the Commission did apply the express provisions of the
Mandate (which mai perhaps be described as embodying "standards of
a legal nature") to specific policies and acts. It is wrong, however, to
suggest that this Ras the only function of the Commission, to the ex-
clusion ofits task of CO-operationwith the Mandatories. It is consequently
equally wrong ta suggest that every utterance of the Commiçsion arnoun-
ted to an expression of an "ohjectively determined conclusion of a legal
nature". And finaliy, as noted above, it is wrong to suggest that anything
done by the Commission sen~ed to give the mandates a "concrete con-
tent" wh.ich they had not possessed before.
37. It "follows frorn the above considerations that the "evidence"
tendered by Applicants cannot serve to establish an amendment to the
Mandate consisting of the introduction therein of objective "norms"
governing the exercise of Respondent's powcrs. The true relevance (if
any) of such "evidence", andof Applicants' suggestionsregarding "stand-
ards" in that regard, will be considered below '.
38. For the reisons aforestated, any attempt in the Reply to establish
the existence ofuiidefined "norms" governin Respondent'sduties under
the Mandate, must he held to have failed. gince, in Kespondent's sub-
mission, the "clear and meaningful noms" originally raised in the
Memorials, and the "norm of non-discrimination or non-çeparation,"
newlp raised in the Reply, also do not assist Applicants to overcome their
problem arising from the discretionary nature of Respondent's pomers. ',
the question rernains whether any further method of escaping the dis-
cretionary sphere is essayed in the Reply.
The answer is that Applicants abide by their allegations mhich, on
analysis, amount to a charge of bad faith. Thus although the? prefer to
Vide para39, infva.
IV, p.249.
Zbid., 253.
' Forthe reasonsdealt wjthinsec.B and para. 26,sid,bya. RRJOINDER OF SOUTH AFRICA I7I
Say that they arrive at a result of "fails to prornote" by a process of
"objective evaluation", and although they disdain "good or bad faith"
as basis of their case, their charge in truth still rests on this basis,as has
been demonçtrated above l.
In regard to this aspect of their case Applicants Say that questions of
intention or bad faith rnay be decided by inference from other facts 2.
This mal be conceded. However, al1the rules for reasoning by inference
would then apply, and particularly the tnro quoted in the Counter-
Illernorial, viz.,
"1. The inference çought ta be drawn,must be consistent with all
the proved facts. If it is not, the inference cannot be drawn.
2. The proved facts sliould 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 inferenceç, then there must be a
doubt tvhether the inference sought to be drawn is correct 3."
Applicants' attempt to restrict the facts to be considered by the
Court 4, obviously conflictç with these principles, and must therefore be
rejected.
39. It is only on the above basis-i.e., of enquiring into good or bad
faith hy a process of inference-that the unformulated modem "stand-
ards" s, and the "evidence" relied upon as establishing their existence,
including in such "evidence" the views of political and scientific author-
ities, could be relevant. So for instance, if the evidence in this respect
should establish that Respondent's policies are so unreasonable, in-
hurnane or unscientific, or fail so lamentably to measure up to universally
acceyted standards, that no governmental authonty honestly applying
its mind to the problems of the Territory could corne to the conclusion
that they are the most suitable method for "promoting to the utmost",
then an inference of mala fides in the sense under discussion might be
justjfied. But anything falling short thereof would not be sufficient. Zn
considering the type of enquiry that would be necessary to establish bad
faith in an analogous situation (the nature of which appears from the
passage quoted), Sir Hersch Lauterpacht said:
"Any attempt to embark upon the examination of the question
whether a Government has acted in bad faith in determining that a
rnatter is essentially within its domestic jurisdiction may involve
an exacting enquiry into the merits of the dispute-an enquiry so
esacting that it could claim to determine, with fullassurance, that
the jiiridical view advanced by a Govemment isso demoflstrablyand
palpably wrong rrnd so arbitrary as to amount io an assertion made
in bad jaith. Only an enquirp into the merits can determine that
althottghan assertionmade by the defendant Gover~mentis not Eegally
~~ell-fortndei dtis nevertkelessreasonable; or that althoughit is not
reasonable,it is not whollyarbitrary 'j."(Italics added.)
1 Vide sec.A, paras. 4-6,supvu.
* IV, p.2.57and sec.A. paras. 4 and 6,supra.
Hfx ïv.Blont, 1939 A.D. 188at pp. 202-203 as quoted in II, p. 145.Vadealso
Certain Expenses of the United Nations (Article17, paragrnph 2,O/ the Charter),
.ddvisory Opinion, r.C.jRegoris 1962,p. 151 atp.Igr per Sir PercySpender.
' Vide sec. A, para.25,supra.
.Asdistinctfrom "normsW-vide para. 34, supra.
Ceillaiai NotwcgiaLoaprs,Judgment. I.C.J. Reports 1957.p. 9. atp.54.I72 SOUTH WEST AFRICA
It would consequently not assist Applicants to demonstrate merely that
somemodern commentators in the fields of science and politics differ from
I3espondent on the question of the best method for promoting well-being
and progress, even if the adverse views should be voiced by large majori-
ties in political bodies and should be extreme and vehernent in their con-
tent. The crucial question remains-is therescofie for honestdi@erence of
opinion '
Applicants seem to show an awareness of the nature of the onus resting
on them when they contend:
I .. . a policy so estreme in its discriminatory and repressive cliar-
acter as apartheid, must be found to violate even the most mirtirnul
standards zrniversallyaccepfed ... as governing the relations betwcen
a State and its subjects I".(Italics added, Save for the word "apart-
heid".)
If "apartheid" or separate development were in trutli the policy of delibe-
rate oppression alleged by Applicants, it seems to Respondent that this
statement would, as a vague generality, be true 2..But it serves at the
same time to emphasize the necessity for Applicants to prove as a fact
the deliberate oppression alleged by them. For this purpose "evidence"
in the form of views expressed by political bodies and other commentators
who have never properly investigated the specifically relevant facts,
cannot be of real assistance to Applicants' cause. Theg can hardIy serve
to refute Kespondent's dernonstration, in the Counter-Mernorial and
herein, based on careful exposition and analysis of al1 the specifically
relevant facts, that its policies are in truth aimed at promotion to the
utmost of the well-being and progress of all theohhabitants of South
West Africa,and that oppression is ascontrary to Respondent's ownstand-
ards as to those of any other government. In so far as the "evidence"
tendered by Applicants is directed at showing that prernises from which
Kespondent proceeds, or methods employed by it, are fallacious, wroiig,
or contrary to "the overwhelming weight of authority" 3, Respondent
submits that the treatment of the facts in the Counter-blemorial and
further herein, amply demonstrates that there is considerable room for,
and de facto existence of, serious and estensive difference of opinion on
the merits of the various political, social, economic and other theories
so categorically propounded by Applicants. Indeed, despite their above-
quoted contention, Applicants do not seriously try to establish that any
of these various -theories is in truth "universally accepted". Con-
sequently the evidence concerne'd, in Respondent's submission. wholiy
fajls toestablish a violation of the discretionary obligation imposed by
Article 2, paragraph 2, of the Mandate.
40. Before proceeding to a systematic consideration of Applicants'
factual averments in support of their charge as analysed above, there
remain two of the Propositions formulated by Applicants which have
not been dealt with specifically by Respondent. They \vil1be considered
in the next succeeding paragraphs.
41. Proposition Bo. 5 reads:
' IV, pp.511-512.
Taking due account of the iactthat standards universally "accepted"arenot
necessarily applied.
Vade,e.g.,IV,pp. 271and 302-312. REJOINDER OF SOUTH AFKICA I7 3
"If any [legal] norms or standards [for judging the action which
Applicants contend to be in violation of Article Z] were applicable,
they would, Respondent implies, be those governing as of the time
the Nandate was entrusted to Respondent l."
This proposition does not accurately reflect Respondent's argument.
Respondent certainly suggested that the Mandate falls to be interpreted
in the light of circumstances esisting as at the time of its creation-a
suggestion which, it is submitted, is of indubitable validity If Proposi-
tion No. 5 seeks to convey no more than the said suggestion, it will
suffice to say that Kespondent has already dealt with Applicants' argu-
ment in reply to such proposition 3.If it does seek to convey something
more, thcn it goes beyond what was argued in the Counter-Mernorial.
In particular, Respondent does not concede the possibility that legal
normç mal exist (or may have existed) which would enable a court to
pass a judgment on whether a particular policy does or does not "prornote
to the utmost" in terms of the Mandate. An enquiry as to the point of
time at which any such norm must have existed in order to be applicable,
isconsequently of a purely hypothetical nature, and no such enquiry was
undertaken in the Counter-Mernorial. The "standards" now sought to be
relied upon by Applicants, in the sense as Respondent above understands
them +,would naturally corne into consideration as they exist at the time
of their application-provided that the application is confined to the
limits and purposes above indicated 5, and is not sought to be extended
to "interpretation" of, and giving a "content" to, provisions of instru-
ments entered into some 40 years earlier.
42. Proposition No. 6 reads:
"Even if current standards existed and were deemed applicable,
Respondent's policy with respect to the inhabitants of the Territory
is asserted to be in compliance with them 6."
Kespondent did not make a general assertion of the nature set out in
this proposition. Roth the Mernorials and the Counter-Memorial were,
in regard to the rnatter under discussion, only concerned with the question
whether certain specific provisions of the United Nations Charter could
be invoked to interpret the Mandate. Applicants said yes ': Respondent
no The matter of "current standards" (as distinct from specific pro-
visions of the Charter) had not yet arisen: that was only raised in the
RepI?. Consequently Respondent was not called upon to, and did not,
formulate an attitude on the hypotheses that "current standards existed
and were deemed applicable". In any event such formulation could not
be made purely on principle: Kespondent would first have to know what
the çpecific content is of any alleged standard relied upon by Applicants
before making any subrnission on whether its pohcy. is in compliance
tlierewith or not.
With reference to the specific provisions of the Charter relied upon in
l Vide. e.g.,IV,pp. +77q78.
Vide sec.B, para. 6. supra.
Ibid.,paras.26-36, supra.
Vide para. 34.sttpra.
Vide para. 39,siiprn.
IV, p.478.
' 1.pp, 104-108.
11,p.395. I74 SOUTH WEST AFRICA
the Alemorials l,Respondent contended tliat its policies had "in fact beeii
designed to give effect to the principles underlying" such pro\.isions 2.
Appiicants have not attempted specifically to controvert this contention.
Instead, their argument in reply to Proposition No. 6 as formulated by
them, amounts to a contention that Respondent's policÿ iç contrary to
the alleged "norm of non-discrimination or non-separation" as defined by
Applicants 3,and that it violates their undefined "norrns and standards" 3.
As regards the first-mentioned norrn. Respondent has never contested
that, if it çhould exist, Respondent's policies would be contrary thereto 4.
As regards the undefined "norms and standards", it is impossible for
Respondent to deal witli any of them individually, for the ver'. reason
that they are undefined and unformulated. Respondent can onl). Say in
general, for the reasons indicated above 5,that in its submission Ap-
plicants have not established the existence of any norms or standards
which are in tmth universaliy accepted and with which Respoiident's
policies, as they actually exist, are in conflict.
In this regard it rnay further be recalled that in the Counter-Mernorial
Respondent did state the following:
"It is . . . not true, as is often represented, that in its moral out-
look and idealistic objectives the policy of separate development
runs counter to modern conceptions of human rights, dignities and
freedoms, irrespective of race, colour or creed. On the contrary,
these very conceptions underlie the policy, and its objectives are
to achieve an end result obviating al1 domination of groups by one
another 6."
Respondent abides by this statemeiit, which falls to be considered in
regard to the factual aspects dealî with hereinafter. The only purpose of
referring to it now, is to stress once more the distinction betweeii, on
the one hand, the conceptions themselves as matters of general principle
or idealistic objective, and, on tlie other hand, rnethods designed to
realize them in practice in given situations. Indeed the whole paragraph
in the Counîer-hlemorial of which the above statement forms a part, is
devoted to drawing this distinction '.In so far as some recent formulations
in resolutions of political bodies, or even in international agreements,.
prospective or real, may be read as seeking to lay down that rnethods
found appropriate in some countries are to be applied uni\.ersally and
under al1circumstances, including those pertaining to South \Vest Africa
and South Africa. Remondent has made no secret of its disaereement
with such notions,'or.of>he fact that its policies do not comply tGerewith.
In truth. hoivever. as will later be de~-nst-a-ed. ~- most formulatio-s - -
contain eqlicit or hplicit qualifications which, in their underlying ratio,
find common groundwith the approach inherent in Respondent's policies.
1Arts, 73 (a) and (b), 76 (b)and (c),of the Charter of the United Sations.
IV, pp 518-519.
+ Vide sec.A. paras. 8 and g. supva.
Videpara. 39, supra.
II,p. 467.
' Vide particularIy the very nextsentence at p. 467. Section D
INTRODUCTION TO THE TREATMENT OF THE FACTUAL
ASPECTSOF APPLICANTS'CHARGE
I. In the preceding sections Respondent analysed ancl dealt witli tlie
legal basisofApplicants' charges relating to alleged violations of Artic2,
paragraph 2,of the Mandate. As was seen l Applicants' case now em-
braces two aspects. In the firçt place, they rely on an alleged "norm of
non-discrimination ornon-separation". The issue in regard to thisalleged
norm is a purely legaI one, Le., whether the "norm" esists or not. If it
possesses the content ascribed to itby Applicants, and if it can be
regarded asembodied in the Mandate, Respondent's admitted policies of
differentiation would be in contravention thereof, leaving no further
dispute between the Parties as regards Applicants' Subrnissions NOS. 3
and 4 2.In regard to this aspect of Applicants' case, Respondent conse-
quently confines itself to the contention, developed in section B above,
that no "norm of non-discrimination or non-separation" a'sdefined by
AppIicants is embodied in the Mandate, or izi otlierwise binding on
Respondent.
2. Applicants, however, inaddition to relying on the alleged norm of
"non-discrimination or non-separation", still make the allcgation that
Respondent's policies in fact fail to promote well-being and progress, and
present a mass of rnaterial in attempted substantiation thereof. The
legal basis of this allegation was considered in sectionC above, and the
factual aspects thereof still require consideration. The present section
serves as an introduction to Respondent's treatment of the said factual
aspects, which will be dealt with in more detail in the succeeding sections
of thisPart of the Rejoinder, However, before proceeding to adiscussion
thereof, Respondent wishes to drawattention in the following paragraphs
to some matters of n general nature concerning this part of the case.
3. Applicants' expositions in the Repiy of the facts relied upon by them
contain a great deal of repetition. To some extent this is unavoidable.
Thus. they present their caseon thefacts by dealing first with the general
principles of Respondent's policy and thereafter with specific measures
applied in implementation thereof. The same course was adopted in the
Counter-4rlemorial. This method of treatment necessarily involveç a
rneasure of repetition as between the general part and the parts dealing
with the various aspects of irnplementation. A further source of repetition
arises from AppIicants' allegations regarding the existe~iceofa "norm of
non-discrimination or non-çeparation". This "norm" is repeatedly
mentioned by .4pplicants. specificaiiy by reference, in their treatment
of the general principles as well as in the different sections of the Reply
dealing ivith the varioiisspecjficaspects of government.
Repetition is also causedby the rnanner in which the Reply has been
drafted,and in particular by the incorporation therein, by refereiice, of
Videsec. A, paraIO,sirpvli.
* Ibid.paras.7-8,supra.17~ SOUTH WEST AFRICA
various reports, articles, comrnents, etc. This often results in the sarne
point being dealt with at various places and from various angles (some-
times inconsistent ones).
Respondent's endeavour will be to avoid, as far as practicable, any
corresponding repetition, .and to deal cornprehensively only once with
each point raised by Applicants, even if it appears more than once in the
Reply. However, sonie repetition in the Rejoinder will be inevitable,
both as a result of the form taken by the Reply, and by reason of the
general arrangement of material, which arrangement will follow that
employed in the Counter-Memorial to which reference is made above.
4. Tt is also to be noted that Applicants in the Reply to a large extent
change the ground of their complaints. Respondent has already drawri
attention to the fact that, for instance, the "norm of non-discrimination
or non-separation", on which Applicants now rely so heavily, is an
innovation in the Reply '.Further specific instances of the introduction
of new cornplaints will be pointed out as and when they are encountered
in Respondent's treatment of the facts. Although Respondent submits
that it is not obliged in law to deal with charges thus raised for the first
time inthe Reply, it will, however, in view of the importance of this case,
and the dernonstrable untenability of Applicants' charges,including those
newly introduced, not adopt a technical attitude of refusing to deal with
such charges. Nevertheless, Respondent wishes to point out that its
treatment of such charges can in the nature of things not be as complete
or comprehensive as it would have been had they been raised properly
and timeously, and Respondent respectfullp asks the Court to bear this
circumstance in mind.
5. One furthex instance of a shifting of ground by Applicants is
evidenced by the attitude adopted iii the Keply towards the Coloured and
Baster groups. This matter has been dealt with abovaz. and for the
reasons there set out Respondent will, inthe following discussion of the
facts, refrain from presenting a systernatic or complete survey in regard
to such groups. References to them will accordingly be only for the
purpose of explanation or exarnple, or to answer some specific point or
allegation made by Applicants.
6. In tlie course of Respondent's treatmeiit of the facts, reference will
again, as in the Counter-hlemorial, be made to practices, policies and
events in other countries, including the Applicant States and South
Africa. Respondent has already 3dealt with the attitude which Applicants
adopt in the Reply in regard to these matters. Briefly, Applicants seem
to accept that reference to circumstances in South Africa is permissible
for purposes of explanation or illustration, or to answer some specific
point raised by Applicants. On thiç aspect tlie Parties may consequently
be taken to be ad idem, and further references to South Africa in the
following sections will be on the sarne limited basis as heretofore 4.
AS regards events in other countries, however, Applicants contend that
any reference to such events is irrelevant in the present proceedings. For
Videsec.A, para.8. supra.
Ibid.,paras. 1-15,si4pva.
Ibid., paras21-24.supra.
' lbid.,para.24, supra. REJO1XI)EH OF SOUTH AFRIC.4 I77
the reasons set out elsewhere in this Kejoinder ',Respondent submits
that Applicants' contention in this regard is untenable. Further reference
will consequently be made belotv to laws, policies, measurcs and circum-
stances in other countries. As before, this will be done only by way of
example, comparison or illustration-to show the similarity of problems
found clsewhere in the world, and to compare the various methods
designed to solve them, or to show the contrast between conditions in
South West Africa and other territones, necessitatingdifferences of
approach in the framing of policies of legislation and administration, or
to render possible a measure of comparison of standards of achievement in
cornuarable circumstances 2.
7. Reference was made above to Kespondent's intention to deal
separately in this Rejoinderwith the general principles of its policies, and
the detailed application thcreof in the spheres to which Applicants'
complairits relate. In pursuance of such intention, the next section hereof
(section E) will be devoted to the general principles of policy. The
specific aspects of implementation will be dealt with as follows:
Gction F: Governrnent and Citizenship.
Section G :Education.
Section H : The EconomicAspect.
Section 1: Security of the Person, Hights of Residence and Freedom
of Movement.
1 Sec.A. paras. 21-23. supra.
2 Ibid., par21, supra.
3 Vide para.3,supra. Section E
CHAPTER 1
ANALYSISOF THE ISSUES
I. In accordance trith the scheme esplained above l, the present
section relates to the broad principles of Respondent's policies, as
distinct from the application thereof in particular spheres, which is dealt
with in sections F to Ibelow. The separate treatment of, on the one hand,
the principles of policy and, on the other, the application thereof, arises
from the following circumstances.
As has been seen, the case sought to be made against Respondent in
the Mernorials in regard tothe alleged breach of Article 2of the Mandate
\vas one of bad faith in the exercise of its powers in terms of the said
Article, in tlie sense that it had assertediy pursued actions ostensibly
within its powers for a putpose not authorized thereby. Since bad faitfi
is bjritçvery nature a fact of ivhichno direct cvidenc can.normally be
produced, and the proof of which must therefore almost necessarily be a
matter of inference from the circumstances, Respondent's case in the
Counter-Memorial was directed at establishing not only that the formula-
tions of policy by Respondent's political leaders belied any suggestion
of bad faith, but also that there was no justification for an inference such
as was sought to be drawn by Applicants. The method employed to this
end by Respondent was broadly the followjnp. In the first place, Respond-
ent furnished general ethnological and historical information regardmg
the Terri tory and its peoples so as to provide a setting and context for
determination of the issues raised by Applicants 2.In Book II7 of the
Counter-Mernorial Respondent set forth the broad lines of its policy,
with its historical development and future aims. and placed itin its global
perspective by referring also to policies and developrnents in other
States in Afrjca and throughout the world, This then paved the way for a
consideration of Applicants' specific points of cornplaint. In regard. to
these, Respondent's first task was to set the record çtraight by pointing
out, and correcting,instances of incomplete orinaccurate presentation of
the facts by Applicants. Far the rest, Respondent filled in the picture by
providing information omitted by Applicants. In the result, Respondent
submitted that. when regard was had to the complete and correct set of
facts, against the background of the historv and ethnology of the Terri-
tory, and in the Iight of the general principles of policy formulated by
Respondent. no inference of bad faith on Respondent's part could be
drawn,but that, onthecontrary, the Court should conclude that Respond-
ent had not in any way departed from the aim of promoting to the
utmost the material and moral well-being and social progress of al1 the
inhabitants of South West Africa.
IVhereas Applicants did not in the Memorials deal separately with the
--neral principles of Respondent's policy, on tlie one hand 3, and the
Sec. D, supra.
Counter-Mernorial, BookIII (II).
"ave ior sonie lirtgeneralizationat 1,pli. ro8-loand 161-IGZ. KEJOINDER OF SOUTH AFRICA I 79
methods of their application in particular spheres, on the other, they now
in the Reply follow Kespondent's lead by devoting a separate section to
"Respondent's policy witli respect to the inhabitants of the Terrjtory" l.
Indeed, the said section of the Reply forms the very core of Applicants'
case on the facts as it now stands. The nature of their case is dealt with jn
the nest paragraph.
2. In the Reply, risha3 been seen *, Applicants deny that their dispute
with Respondent "... hinges on the issue of Respondent's 'good or bad
faith' " 3, and they insist that their case rests on "an objective evalua-
tion of [Respondent's]conduct" 3.
In order to substantiate this contention. Applicants now introduce
their alleged "norm of non-discrimination or non-separation". For the
reasons advanced above ', Respondent subrnits that no such norm can be
read into the Mandate, or isothenvise binding on Respondent.
Howei.er, in addition to, or apart from. relying on the "norm of non-
discrimination or non-separation", Applicants still rnake the factual
allegation that "Kespondent's policy and practice of apartheid fails [sic]
to prornote the well-being and social progress of the inhabitants of the
Territory" j.In so doing, they appear to rely, inter alia, on certain un-
formulated "norms and standards" 6. Respondent has dernonstrated that
the case sought to be built by Applicants on this factual basis, in truth
still involves a charge of bad faith, although Applicants çeek to avoid this
label '. Indeed, Applicants themselves surnmarize the factual allegation
which they seek to prove as follows:
"As will be shown, Respondent's policy and practice with respect
to each of these aspects of life, is [sic] directed toward the primary
end of assuring an adequate 'Native' labour supply in the Territory,
particularly in its 'White' Police Zone (comprising more than seventy
per cent of the Territory) subject always to the condition that, in the
words of Respondent's Prime Minister, 'There is no place for hirn
[i.e., 'the Bantu'] in the European community above the level of
certain forms of labour' a."
Furthrrmore, after setting forth the general purport oftheir allegations
regarding syecific aspects of Respondent's policy, viz., those relating to
education, the economic aspect, political rights, and rights of security,
residence and rnovement 9, Applicants Say:
"ln sum, under apartheid, the accident of birth imposes a manda-
tory life sentence to discrimination, repression and humiliation. It is,
accordingly, in violation of Respondent's obligation, as stated m
Article 2, paragraph 2 of the Mandate, to promote to the utmost the
well-being and social progressofthe inhabitants Io."
It is clear, therefore, that Applicants have in no way abjured their
IV, pp. ?Go-3Gr.
f Vide sec.A, piiras.2-6and sec.C, para. 29,supra.
IV,p. 257.
Sec. B.supra.
IV,P 277.
' Videsec. C. para. 32,sitpra.
Vide sec.A. paras. 2-roandsec. C, paras 32-39, supra.
IV, 13272.
Ib~d.,PP. 272-274.
'O Ib~d.,p.274.180 SOUTH IVEST AFRICA
charges of deliberately oppressive conduct and bad faith on Respondent's
part.
3. The purpose of the present section is consequently to refutc Appli-
cants' factual allegations, which, on analysis, amount to a charge of bad
faith, in sofar as such allegationsrelate to the broad principles of Kespond-
ent's policy of separate developrnent. To establish a case in this regard,
Applicants rely on :
(a) inferences frorn facts, the decisive aspects of which are said by them
to be undisputed 1;
(6) "Relevant evidence" falling under the following heads:
(i) "judgments of qualified persons with first-hand knowledge of
South Africa and South West Africa" 2;
(ii) "official views of governments in al1 parts of the world, ex-
pressed, inter alin, through the United Nations as well as
through findings and resolutions of the United Nations itself" 3;
(iii) "overwhelrning weight of contemporary authority in the
politicaland social sciences" ';
(iv) "history and character of the system of 'homelands' or 'tcrri-
torial apartheid' " 5.
It is also particularly through the first three of the above classes of
"evidence" that Applicants seek to establish the existence of the un-
defined "norrns and standards", which constitute the first liiik iii their
contention that Respondent must be held to be guilty of a breach of the
Nandate bpreason of alleged violation ofthe "most minimal standards
universally accepted" As noted above ', this contention iç but a
particular method whereby Applicants attempt to establish a case on the
basis of a charge of bad faith on Respondent's part-the basis to which
Applicants. despite their everp endeavour, remain confined.
4. In the next succeeding chapters Respondent will deal ivith tlie
material referred to in the previous paragraph, andwiil demonstrate that
nothing contained in the Reply in any way casts doubt on the validity of
the contentions advanced in the Counter-Mernoriai, In this regard, much
the same method will be employed asin the Counter-Mernorial: Responcl-
ent will correct the errors and supply the deficiencies in Applicants'
exposition, and will place the facts thus corrected in their proper per-
spective and context. For this purpose, Respondent will consider the
allegations of fact referred to in paragraph 3 (a), supra, in conjunction
with the allegntions and contentionsregarding the systern of homelands
Respondent's exposition will show that although certain decisive facts
are indeed, as alieged by Applicants, "common cause", others are decid-
edly not. In addition, Respondent will dernonstrate that rnaiiy decisive
facts and contentions are not effectively controverted. or even disputed,
by Applicants. In the result, Respondent will, it is subrnitted, refute Ap-
plicants' contention of bad faith on Respondent's part.
IV, pp.262-277.
Ibid., pp277-293 and593-599.
' Ibid.p,p.222-230. 277,293-302 ,02-503.
' Ibid., pp277, 302-312 and 600-602.
Ibid., pp277 and 312-326
IV, p.512.
' Vide l'art III. seC, para. 39,supra.
Referred to in para. 3 (b(iv), sirpra. REJOIXDER OF SOUTH AFRICA 181
j. The treatment of the three other aspects of evidence, consisting of
judgments or views of various types of persons or bodies, rvill be ap-
propriate to the nature of their relevance. In this regard it has been
shown that such views or judgments could be of assistance to Applicants
only if they should establish that Respondent's policies are so unreason-
able, inhumane or unscieritific, or fail so larnentably to measure up to
universally accepted standards, that no governmental authority honestly
applying its mind to the problems of the Territory could corne to the
conclusion that the policies are the most suitable rnethod for "prornoting
to the utmost". This amountsto saying thai Applicants bear the onus of
establishitignat anly that some authorities are critical of Kespondent's
policies, but that condemnation of such policies iso universal asto leave
no room for honest and inforrned differences of opinion regarding their
demerits. In the appropriate chapters, Respondent will demonstrate
that .Applicants have signally failed to discharge this onus. This will be
done by showing not only that there in fact exist wide differences of
opinion as tothe validity of the various theories on which Applicants rely
in their attempt to discredit Respondent's policies, but also that many
of the authorities quoted by them do not tliemselves even support
Applicants' contentions.
6. The arrangement of Respondent's argument which lias been adum-
brated in the preceding paragraph, will take much the same form as that
employed in the Counter-Mernorial. The next chapter (Chapter II) will
be devoted tothe origins and early development of Respondent's policies.
Chapter III u7ildeal with relevant indications afforded bj?developments
in other territoriesand States. The said chapter will serve, inter alia, to
show that the political theones propounded by Applicants have corne
nowhere near io being so successful in practice that Kespondent could be
accused of bad faitli, or even unreasonableness, in disputing their
soundness or universal applicability. In Chapter IV, Respondent will
briefly sketch the post-war adjustments to its policies, and wil1deal in
more detail in Chapter V with the isolated points raised in this connection
by Applicants in the Reply. This leaves as a final topic the views and
theories of various persons and bodies 2.which will be discussed in
Chapters VI to XI hereof.
Sec.C. para.39, supra.
Vide para.3 (b) (i)-(isupra CHAPTEK II
RESPONDBNT'SPOLICIES :
ORIGINSAND EARL Y DEVELOPMENT
I. It is self-evident that no system of government can be properly
evaluated without regard being had to the setting within and the back-
ground against which it operates. Since Applicants did not in their
Mernorials furnish the necessary information in this regard, Respondent
remcdied the omission by providing a brief exposition of the Territory's
geography and history, and the ethnic characteristics of its population ?.
ln the Reply, Applicants make hardly anp reference to this e7position.
The history and ethnology'of the Territory, Applicants Say, "may be
taken as substantially accurate for the preçent purpose" 2. The only
reservation made by them with regard to history does not relate to
South West Africa, but to South Africa itself, and wiIl be dealt with
elsewhere in this Rejoinder 4.As regards ethnology,Applicants go furtlier
and make the following concession, viz.: "lt is indisputable that in the
Territory there do esist groups differing in language, custom and econo-
my" *.This is followed by an argument concerning alleged "fostering"
of such differences This argument will receive attention at an appro-
priate juncture 5-at present Respondent points out merely that the
background information furiiished in the Counter-Memorial stands un-
contested.
2. In the Counter-Mernorial Respondent also contended that, to a large
extent, the objective facts of the situation in South West Africa in rgzo
dictated the policies initially applied in the Territory 6.Thus tlie ~WO
basic features in Respondent's policy in the early stages, viz., develop-
ment of the Territory primarily by means of European initiative, and
differentiation between the various population groups in the Territory,
were, as has been shown 6,alrnost inevitable results of the circurnstances
in the Territory rather than a positive application ofsome philosophy of
government. Also on this aspect Applicants have fajled to join issue mith
Respondent .
3. Manÿ of the circumstances which shaped Kespondent's policies in
South West Africa also obtained in other parts of Africa, and, as Re-
spondent demonstrated 7, such circumstances called forth policies and
practices which showed a great deal ofcorrespondence with those applied
by Respondent. Once again, Applicants do not dispute the facts-indeed,
they concede. arguendo, the accuracy thereof a,Save for alleging that tlie
"interpretation given by Respondent to the policy of 'indirect rule' " is
"fallacious" 8. Applicants do not, however, state or explain where tlie
l Vide II.Counter-Mernorial, Book 1Il.
IV, p. 261.
As set outinfootnote h at IV, p.zGi.
+ Vide Chap. 1'and Annex A, iiifra.
' Vide Chap. V, paras.85-101. iizfva.
Vide II, pp404-41a
' 11'pp.430-440.
IV' p. 444. REJOIXDER OF SOUTH AFRIC.4 1~3
faliacy in Respondent's interpretation is alleged to lie. In these circum-
stances Respondent submits that the whole of its exposition of policies
applied in other States in Africa, including its "interpretation" of "indi-
rect rule", must be Iield to be uncontroverted.
4. Applicants do say, however, that "Respondent's references to poli-
cies aIleged to have been followed in other areas have no relevance to
the issues in these Yroceedings" '.The reasons advanced by them for
thjs contention, viz., that in none of the areas in question did the govern-
ing Power apply tlie policy of apartheid, and that none of the areas is
at present administered under Mandate l, have already been analysed
and shown to be untenable 2. In the course of furnishing their said
reasons, however, Applicants Say:
"... in none of the areas in question did the governing Yower apply
the policy of a+artheid, on the basis of which the status, rights,
duties, opportunities and burdens of the population were . . .system-
atically allotted on the basis of race, color or tribe l".
It is incomprehensible that Applicants can, without any attempt at
substantiation, make a staternent Zikethis in the face of Respondent's
clear demonstration in the Counter-Mernorial 3 that systematic differen-
tiatjon was jnfact applied throughout Africa prior to the Second World
War, and, indeed, forsome time thereafter.
5. Respondent has show that not only the authors of the Mandate,
but also the Permanent Nandates Commission, regarded a policy of
differentiation as desirable or at least inevitable. in this regard, also,
hpplicants fail to refute Respondent's contention 5.
6. In the result, nothing advanced by Applicants in the least affects
Respondent's dernonstration that its policies-and, in particular, the
differentiation involved in thern as betiveen various ethnic groups or
people5 living in South West Afnca, including the White group which
had in part become settled there prior to Respondent's régime, and had
in part been encouraged to settle there aftenvards. as a necessary means
for developing the Territory-grew naturally from the circumstances
encountered by Kespondent on assumption of the Mandate, and that the
broad trends of such policies were during the whole period of the League's
existence in entire accord with the conceptions of the times, including the
views andpractices of the League supervisory organs and of Mandatory
and Colonial administrations in other parts of Africa.
Indeed, the whole trend of Applicants' Reply is an implied admission
of the correctness of Respondent's attitude. This appears not only from
their faiIure to deal with the material adduced by Respondent, to which
reference is made above, but more particularly from their basic legal
submissians. As has been seen, Applicants do not rely on the strict terms
of the Mandate, or the intentions of its authors, or its interpretation and
application during the lifetime of the League of Nations. On the contrary,
Applicants present a case based upon "current standards, as determined
' IV.p. 444.
T'idesec.A, paras.2 1-23. supra.
Vide II,pp. 431-437, vidalso sec. B. paras13 and 14, supra.
+ Vide sec. B, parasI 1-12,st+pra.
Ibid..para.16. supra.r84 SOUTH WEST AFRICA
by contemporary knowledge, conditions and requirements" l,or on an
"interpretation" of the Rlandate-
". .. on the basis of current standards, rather than on the basis of
the presumed 'intentions of the parties' at the time the obligations
were conferred and accepted 2".
Respondent has already dernonstrated the untenability in law of
Applicantç' said contentions 3.At prescrit Respondent merely points out
that Applicants' preoccupation with "current standards" clearly impIies
a recognition on their part not only that earlier standards differed from
the alleged "standards" now invoked by them, but also that Respondent
has in fact complied with such earlier standards. For the reasons set out
above, the latter statement is, indeed, incontestable.
7. It follows from the above that the problems which have resulted in
the present proceedings,arise essentiallyfrom theneedtoadapt to changes
of circurnstances which have occurred since the Second World War,
and from different desires, ideas and views as to the manner in which
such adaptations are to be made. The changes in question involve not
only the abilities, needs and aspirations of the population of South West
Africa, but also widely held conceptions regarding the proper aims and
methodç of government. The crucial issue in these proceedings relates
to the question whether adaptations of policies in the ligktof changed
circumstances should consist of ignoring the actually existing diversity
and differences arnong the various population groups, abandoning dif-
ferentiation, and attempting to create an integrated population in which
a majority vote is to decide the future destiny of al1 concerned, or of
continuing ta recognize such diversity and differences, and to provide
for the separate development of the peoples concerned towards eventual
self-determination by each of them, accompanied by such mutual co-
operation as they themselves rnay decide upon. This issue, in itç various
aspects, will be coasidered in the remaining chapters of thissection of the
Rejoinder-on the basis, of course, of the question whether Respondent
ismotivated by bad faithin preferring the course of separate development
to that of attempted integration.
l IV! p.514.
Ibzd., p515.
3Vide sec.B and sec. Cpara. 35, supra. CWAPTER III
RESPONDENT'SPOLICLES:
COMPARISON WITH OTHERCOUNTRIESAND TERRITORIES
I. In the previous chapter Respondent pointed out that the problems
which have resulted in the present proceedings arise from different desires,
ideas and views as to the manner in which adjustments to policies in
South West Africa are to be made in the ljght of post-war developments.
In this connection Applicants' attitude with regard to political rights is
that-
". . . relevant and generally accepted norms by which the obligations
stated in Article 2,paragraph 2, of the Mandate should be measured,
have been established by the United Nations. Theseincludethe in-
stitution ofuniversal adult suorage altdthefiromotion of participation
on the part of al1qualifiedindivithaEsin all levelsof governmenland
adminisiration within the framework O/ a single territorial unit'".
(Italics added.)
This a pears to be no more than a specific applicatiori of the alleged
norm O!=non-discrimination or non-separation" which Applicants have
now introduced 2. Respondent has given its reasons for submitting that
no such nom can be read into the Mandate or is otherwise binding on
Respondent 3. However, in so far as Applicants advance an independent
argument in an attempt to establish the specific "norms" mentioned in
the above quotation, Respondent will deal with it in the present Chapter.
2. ~hilst adrnitting that the Mandate cannot in law be construed as
if it were a trusteeship agreement, and that the Territory is not subject
to the jurisdiction of the Trusteeship Council l,Applicants nevertheless
say :
"The practice of the Trusteeship Council, approved by the Gen-
eral Assembly, is adduced asevidencein support of the proposition :
that there exist established principles and processes pertaining to
problems and objectives analogous in all respects to those involved
in Article z,paragraph 2, ofthe Mandate; that such principles and
processes are generall jraccepted by .States comprising the 'Trustee
ship Council and members of the organized international comrnu-
nity ;that these established principleç and processes constitute noms
by which the obligations stated in Article z, paragraph 2, of the
Mandate, and Article zz of the Covenant of the League of Kations,
should be measured ... 4"
It is accordingly on the practice of the Trusteeship Council, approved
by the General Assembly, that Applicants rely for proof of their alleged
"norms" by which Respondent's obligations should assertedly be
* Vtde sec. A, paras2-10,
Vtde sec.B,sufwa.
' IV,pp. 441-442.186 SOUTH WEST AFRICA
measured. Information regarding such practice is set out in Annes 7
to the Reply 'in three sections relating respectively to-
(a) establishment of universal adult suffrage *;
(6) treatment of a territory as an integrated unit 3; and
(c) encouragement of meaningful Native participation in government
and administration 4.
3. It will be apparent, however, that the material set out in Annex 7
of the Reply could not possibly establish the existence of a "norm" iii
the sense in which Respondent used the term, Le., as denoting a legal rule
which in objective terms defines Respondent's obligations under the
Mandate 5.The legal basis of the activities of the Trusteeship Council is
provided by Article 76 of the Charter and relevant trusteeship agree-
ments. The function of the Council is to apply the provisions of these
documents, and to CO-operate in carrying them out. The Trusteeship
Council is not empowered to amend, modify or arnpiify them. A fortiori
a pronouncement of the Council in respect of one trust territory does not
have any legaliy binding force on the Administering Authority in respect
of any other territory. These considerations have even greater strength
when applied to the present circumstances-nothing gives the Trusteeship
Council power to arnend, rnodify or arnplify the provisions of the Man-
date, which fa11outside its province altogether. It follows therefore that
Applicants' attempt to distil from pronouncements OT practice of the
Trusteeship Council legal norms binding on Respondent in these pro-
ceedings, must be held to have failed 6.
4. At the most. therefore, the pronouncement of the Trusteeship Coun-
cil rnay be regarded asstandards as defined by Respondent, Le., practices,
policies or theories of government which are not per se legally binding
on Respondent 7.As has been seen, such standards can be of relevance
only as material from which an inference of bad faith on Respoadent's
part may be drawn The first step in such anenquiry would of course be
to determinewhether or not Respondent's policies in fact comply with the
standards pronounced by the Trusteeship Council. In thisregard Respond-
ent willshow that the "norms" relied upon by Applicants for the most
part do not consist of objective criteria against which Respondent:~ poli-
cies could be measured, but, on the contrary, only constitute objectives
to be pursued. lnasmuch as Respondent is for the most part in full agree-
ment with these objectives, and has always attempted to attain them, its
conduct has not been in conflict with such "norms".
In so far as the Trusteeship Council has however, in some instances,
recommended metkodsto be employed in attaining the said objectives,
or the tempoat which development should take place, it is important to
bear in mind that such recommendations related to specific trust terri-
tories. If they are toplay any role at al1in the determination of Respond-
entas good or bad faith, it would at least be necesçary to establish
lITbid.pp. 451-452.
fbid. pp. 452-455.
* Ibid..pp. 455-457.
Sec. C,para. 34.supra.
* Vide sec.i3para. 3, supra.
Sec. C,paras. 34-35,
Ibid.,para. 39,supra. REJOISDER OF SOUTH AFRIC.4 Is7
that the circumstances are such that Respondent should, in the exercise
of its discretion, have had regard to such recornmendations. This irnplies,
firstly, that the relevant circurnstances in South West Africa rnust foral1
practical purposes he identical with, or closely analogous to, those in the
trust territory to which the recornmendations related. As will be seen,
Applicants make no serious attemptto provide this rieccssary link between
.the recommendations on which they rely, and the circumstances in South
West Africa.
Even assuming, however, that a reasonable observer may feel that cir-
cumstances are sufficiently analogous to render such recommendations
applicable also to South West Africa, the further question would arise
whether a failure by Kespondent to have regard to the recomrnendations
could give rise to an inference of bad faith, or, to put the question in
another form, whether such failure would be inexplicable Save upon an
assumption of an improper motive. Many factors are involved in this
enquiry, inter dia. the question to what extent the recommendation con-
cemed reflects an opinion held by al1 thinking people. But, for present
purposes, Respondent would wiçh to cmphasize one factor in particular,
viz , the extent to which application of the recomrnendation in question
did in fact have beneficial results. Clearly no inference of bad faith can be
drawn against Respondent for not Iollowing recommendations which
had disastrous, or even doubtful, results in the territories in whjch they
were applied. For the purposes of this aspect reference will be made not
only to trusteeship territories, but also to other formerly dependent
territories to which Applicants' çuggested "norms" have been applied in
recent years.
In the succeeding paragraphs Respondent deals with the contents of
Annex 7 to the Reply, but will, for convenience, not foUowthe sequence
of Applicants' treatment. Respondent will first deal with the çubject-
matter referred to in paragraph 2 (c) above, then with that mentioned
in paragraph 2 {a), and finally with that stated in paragraph 2 (b}.
A. Encouragement ofMeaningfulNativeParticipationin Governmentand
Administration
j. Applicants state that-
''[t]he Trusteeship Council has constantly urged greater participation
of indigenous inhabitants in the government and administration of
the Territory in which they live l".
Respondent is in full agreement with the objective of promoting partici-
pation in government and administration on the part of indigenous in-
habitants. However, the particular method by which, and the tempo at
lvhich, this objective can best be promoted must of necessity depend
on, and be adapted to, the specific circumstances obtaining in the terri-
tory. It seems, however. as if Applicants wish to stress the "importance
of training" and "opportunities for experience" l. Applicantç further
associate themselves with arguments that "qualificntions and experience"
should not be a "prerequisite to public office", and that the administering
authority-
". .. should not be Loorelactant to take a certain amount of risk in18s SOUTH WEST AFRICA
placing [rnembers of the indigenous population] in positions where
they can obtain the necessary experience l". (Italics added.)
It is at once apparent that no objective standard emerges from the above
quotations, and they hardly advance Applicants' case in any other way.
Respondent fully agrees that training and opportunities for experience
should be promoted as far as practicable in the specific circumstances of
the Territory, and has indicated the progress made in this regard in the
past, and that expected to be made in the future 2.
6. Applicants setout lparticulars of a variety of steps taken in various
territories in order to prornote participation in government and adminis-
tration by the indigenous inhabitants. These particulars furnish no evi-
dence of the recognition, or application, of any objective standards, but
merely of particular practical steps taken to improve the condition of the
indigenous inhabitants ofthe territories concerned. Respondent does not
propose dealing with anp of these steps: the fact that they were considered
advisable in the circurnstances obtaining in the said territories is of no
relevance to the issues in the present case. No attempt has been made
by Applicants to show that conditions and problems in such territories
were, or are, in so far as they rnap be relevant to the particular steps,
closely analogous to those in South West Africa.
Applicants, however, do attempt to create the impression that "indige-
nization" of the administration of trust territorieshas proved an unmixed
blessing in al1 cases-even on a basis "rejectCing! the question-begging
argument tliat experience is a prcrequisite to public office" 3-and has
contributed materially to the achievement of independence in such terri-
tories. Respondent demonstrated in the Counter-Mernorial, inter alia,
with reference to United Nation's sources, that Africanization of the
public service, i.e., the replacement of European and lndian personnel
by Africans,has resulted in a reduced standard of efficiency throughout
Africa q.Apart from quoting authorities with a more general application,
Respondent also referred specifically, amongst others, to the former
trust territory of Tanganyika as an example of a State where Africaniza-
tion affected the standard of the civil service 5.
Another case in point is the former Carneroon Republic, a State held
upby Applicants as an example to Respondent 6.Victor T. Le Vine com-
ments in respect of this Statc that-
". ..the government has recruited a large nurnber of individuals who
seem il1prepared for thejr tasks and more concerned with the status
of their positions than the performance of their duties.
It is therefore not surprising that many Camerounians have been
keeniy disappointed in the performance of their officials. If Presi-
dent Ahidjo is to be believed, the East Cameroun civil service can
be charged with nearly the entire catalogue of bureaucratic short-
comings. In Rlarch 1962, he excoriated East Cameroun officialdom
in a well-publicized memorandum, parts of which deserve to be
quoted at len$h:
IV, p. 456.
* VideIII, Counter-&lemarial, Book V,sec.E; uidealso sec.F,infra.
' 11,pp.455-456 and 111,pp.158-163.
= 11,p.455.
IV, p.456, REJOIXDER OF SOUTH AFRlCA Isg
A marked laxity arnong nearly the quasi totality of the civil servants
is becoming more and more apparent. .. In the majority of the ad-
ministrative offices, even up tothe central services and the different
ministries,there reigns such carelessness and such anarchy that even
the least informed and least aware are alarmed and çorely troubled
over the future of Our civil service . . .
. ..among these failings are intemperance, dishonesty, and lack of
courtesy; poorly done work, lateness and absenteeism, lack of dis-
cipline and insubordination . ..inffated remunerations, and the
simultaneous holding of several jobs . ..Furthermore, civil servants
should refrain from overt criticism of and insultç to the Government
or its policies l".
Attention is also invited to a view expressed by Mr. Patrick Wall, a
British Member of Parliament, United Nations representative and com-
mentator on African affairs, who wrote:
"lt is becoming increasingly clear that though tlie white man can
work in independent Africa he cannot have his home there as he
finds the new standards of justice, education, and agricultural
development intolerable 2."
7. To sum up: Respondent is in full agreement with the objective
advocated by Applicants, viz., the promotion of participation in the
government and administration of the Territory by members of the
Native population. Applicants have not, however, itis submitted, estab-
lished any objcctiveiy applicable criterion as to tempo or method of
promoting such participation. In so far as they rely on examples of other
States, they do not establish that circumstances in such States are analo-
gow to those in South West Africa, or that the methods employed there
did in fact proniote well-being and progress. In the result, it issubrnitted
that Applicants' whole argument is entirely unfounded.
B. Establishmentof UniversalSuffrage
8. Applicants state that the "introduction of methods of suffrage
leading eventually to electionç by universal adult suffrage" is a "cIear
standard from whicli substantial deviation is illegal under the practice
of the United Nations" 3, and continue:
"The Trusteeship Council has conçistently recommended 'such
democratic reforms as willeventually give the iiidigenouç inhabitants
of the Trust Territory the right of suffrage and an increasing degree
of participation in the executive, legislative and judicial organs of
government '3."
In this instance also, no objective legal "norm" is proved by Applicants
in this respect. In fact, Applicants do not even attenipt to give any de-
finition of what is meant by words such as "introduction of methods of .
suffrage", "democratic reforms" and "the right of suffrage". Theÿ state
that "[tlhe principle of universality of suffrage has never been in doubt" J,
Carter, G, M. (Ed.), Fivs African States: Responses t'o Diversity (1963:
PP. 338-339.
IV,p.C451. VII, para. 8,iiîfra.
Ibid.. p452.=go SOUTH WEST AFRICA
but adduce no argument, based on legal grounds, or even state what
exact meaning the: ascribe to this "principle". Do Applicants suggest
that the grant of male adult suffrage is prohibited, in terms of the. Man-
date, because women are excluded? Or do Applicants contend that the
grant of rights of suffrage, based on merit qualifications of individuals, is
prohibited in terms of the Mandate, because such rights are not "uni-
versal"? And what significance do Applicants attach to the appreciation
by the Trusteeship Council of "the difficulty of introducing at once a
modern system of suffrage" '7 It is not surprising that Applicants, in
these circumstances, are apparently embarrassed by the "norm" which
they contend for, since they immediately qualify their "clear standard"
by submitting that "substantial deviation" therefrom is "illegal under
the practice of the United Nations" l,thereby implying that lesser
deviations, of an uncircumscribed nature, are not prohibited.
g. The remainder of Applicants' discussion of this topic contains
yarticulars of the extension of rights of suffrage in vanous territories.
The practicability and advisability of such steps in the said territories
have not been correlated in any way to circumstances obtaining in South
West Africa, and are therefore of doubtful relevance. Applicants have
made no attempt to show that the conditions and problems in such terri-
tories are, in so far as is relevant to the particular steps taken, the same
as, or analogous to, those in South West Africa.
Applicants do, however, advance the contention that-
"[alchievernent of independence of al1the Trust Territories in Africa
by 1962 dernonstrates the peaceful transitif ornomthe status of
administered territory to one of democratic majority rule with full
franchise by adult indigenous inhabitants *",
suggesting that no serious problems, closely related to the exercise and
substance of the rights of suffrage granted, have arisen in such territories.
It is surprising that any person professing to be informed about events
in Africa can make such a suggestion. In the Counter-Mernorial Respond-
ent had occasion to discuss the tendency throughout Africa to adopt
one-party systems of government 3.In the course of this discussion Re-
spondent mentioned a suggested definition of African democracy which
read "one man, one vote, once" 3.Roth the tendency and the definition
have in the meanwhile become cornmonplaces arnong commentators on
African affairs.The methods employed in eliminating opposition parties,
have been described as follows:
"A majority party that is the legal successor to a departing
colonial régime inherits, or by default acquires, almost unparalleled
power and freedom of action once it becomes the government of
the day ...When the power of deprivation of services and patronage
is insufficient to persuade opposition elements to cease activity
and to join the governing party in a vast parti unifié,or united
front, then the more classical forrns of persuasionor neutralization-
imprisonment of opposition leaders, harassment by contrived al-
legations, censorship, and curtailment of political liberties-can be.
IV,p. 451.
Ibid., p452.
' 11,p.455. REJOINDER OF SOUTH AFRICA Igl
and in several instances have been, employed. . . . Endowed with
such comparatively unfettered power, the leaders of dominantparties
have moved progressively toward the one-pnrty system, in response
to a variety of factors and pressures l."
Other commentators explainedthe tendency towards one-party States
as follows:
"The governing party in many sovcreign uiiderdeveloped States,
and those intellectuals who make it up or are associated with it,
tend to believe that those who are in opposition are seParated/rom
fhem by fundamentnl andirreconcilablediflereaces. (Italics added.)
They feel that they are the State and the nation, and that those
who do not go along with them are not just political rivals but total
enemies ?. "
And-
"The dilemnia of responsible African leaders is liow to keep their
following without making promises they know çannot be kept. They
niay find there is only one solution-to scrap most of the denlocratic
rnachinery by which they have won freedom from colonial rule,
and set up one-party dictator[i]al rule, with no quarter for political
rivals. This has already happened in more than one of the new
States. The end O] colonialrule has brought about the end of pevsonal
and #olitical freedom for the tribesmen, who rnav find themselves
worse off than bcfore 3." (Italics added.)
In the Annexes to tliis Chapter Respondent gives a brief exposition
of the recent political history of various States in Africa. This exposition
contains a ntimber of illustrative examples of the reasons for creating
one-pairy States, and the methods applied to that end. In this regard
attention is invited to tlie following random examples, viz., Ghana ",
Zanzibar s,Kenya and Algena '.
IO. However, the apparently irresistible spread of one-party States
in Africa is not the only fact which refutes Applicants' contentions. It
passesal1understanding how Applicants can Say that, in the case of al1
the trust territories in Africa, the "transition from the status of ad-
ministered territory to one of democratic majority rule with full franchise
by adult indigenous inhabitants" was a "peaceful" one.
The whole world is aware of the bloodshcd and chaos which accorn:
panied the independence of the Trust Territory of Ruanda-Urundi
(now Rwanda and Burundi). As is shown below 9the number of refugees
from Rwanda had, according to the latest Anrrual Report of the Lhited
Natioizs Wigh Comrnissionerfor Refugees, by Alarch 1gG4, reached a total
of Ijj,oûO. Tens of thousands of persons, mainly Tutsi, were slaughtered
1Goldschmidt. EV.(Ed.), The United States and Afric(rgbj),p. 64.
2 Shils, E., "The IntelIectualin the Political Development of the NewStates".
WorMcAllister, B., "Tribal ChalIenge.inthe New Africa", African
Wolld {Sep.
1963Vide ilnnexIV, infra.
Vide.4nnex XI, infra.
Vide Annex V, i?zfrn.
VideAnnex 1,infra.
IV, p.452.
VideAnnex VI[. para. 7,infra.192 SOUTH WEST AFRICA
during the period of Rwanda's transition to independence l.The fornier
French Cameroon, another trust territory, \vas in the grip of what lias
been deçcribed as "latent or active terrorism" * for some years before,
dunng and after its transition to independence in 1960 ,nd peace has
not yet been restored. The Trust Territory of Tanganyika was peaceful
for three years after independence, which was granted in 1961 .n 1964,
however, there was a serious mutiny of Tanganyikan soldiers which
could oniy be quelled with the assistance of foreign troops j. Togo, an-
other former Trust Territory, became an independent republic in 1960
and a one-party State in 1961 4.In 1963 its president was assassinated
and the government overthrown 4.In April 1963, a plot to overthrow
the new government ivas discovered 4.
The above States, quoted as examples by Respondent, are al1 former
trust territories, to which Applicants' exposition specifically refers.
In addition there are of course, a number of other States-not previously
trust territories-where the transition from dependent territory to in-
dependent sovereignty urasaccompanied with as much or more blood-
shed. In this regard thoughts turn involuntarily to States such as Al-
geria 5, the Congo 6 and the Sudan 7. These instances shouïd suffice to
demonstrate that the introduction of universal addt suffrage, whicli
Applicants seek to impose on South West Airica, has not been such an
unqualified success in Africa that Respondent could be accused of bad
faith or even unreasonablenesç if it resists undue expedition in this
regard.
II. Respondent emphasizes and reiterates its attitude, expressed in
the Counter-Mernorial 8,that it is in no way opposed to rights of suffrage
for all or any of the peoples of South West Africa in appropriate cir-
cumstances, provided that the introduction of such rights is carefully
adapted to the circumstances of al1 the peoples concerned. Respondent
is convinced that, when regard is had to the present stage of development
of the indigenous population groups in South West Africa, it would be
unwise entirely to discard their traditional political systems. On the
contrary, Respondent is of opinion that future development in their case
will be most beneficial if it is based on the roots of their own traditional
systems Y This principle was applied with great success in South Africa,
where tribal systems of government are being adapted by an evolutionary
system of development to present-day needs, inter alia, by the intro-
duction, initially on afairly restricted basis. of an elective element 'YThe
same method of introducing suffrage rights has a1so been proposed by
the Odendaal Commission for the indigenous groups of South IVest
Afnca in their future development '1. For reasons which are known,
Vade Annex VII. infra.
2 Vide Annex II,para.I ,infra.
Vide Annex IX, para.i, infra.
Vide Annex X, infva.
Vide Annex IX, intra.
Vide Annex III. infra.
' Vide Annex VIII, infra.
Il, p. 399 (par27).
Ibid., p. 477.
'O Ibid., pp. 478-483.
l1Vide R.P. 12/64p,p. 81-107;e.g.re Ovarnbolanp d.,83 (paras. 301 and 307). REJOISI>ER OF SOUTH AFRICA I93
Respondent, while indicating its agreement in broad principle, has not
yct taken any decisions on the recommendations of the Odendaal Com-
mission in this regard l.
C, The Treatment of a Territory as an Integrated Unit
12. .4s was seen, Respondent is in general agreement with the two
propositions considered above, viz., that it ïvould be sound policy to
incrcasc progressively the rights of suffrage of the Native peoples of
South A frica,and that Native participation in government and
administration shouid be encouraged 2.The differences between Ap-
plicants and Respondent in those respects relate more to matters of
emphasis and tempo than of principle. Respondent's attitude is that
it would be calamitous to lower the standards of government and ad-
ministration by a too precipitate advance in either of the mcntioned
spl~eres.Applicants, on the other hand, seem toadopt theattitude either
that there is no substantial riskof such lowering, or else tliat high stand-
ards of government and administration ark luxuries which should not
stand iii the way of advancement of Native interests or aspirations in
these spheres.
However, as regards Applicants' suggested norm or standard which is
said to impose an obligation on Kespondent to treat the 'Territorjr as a
single integrated unit with one centralized government, the issue be-
tween the Parties iç more basic, and involves the very existence of the
rule on \ivhichApplicants seek to rely.
13. .4pplicants contend that there exists a legal "norm" whicli in al1
cases, and in al1 circumstances, obliges administering authorities of
trust territories (and, by a process of extension, aIso Kespondent in its
capacity as administering Power in respect of South \Vest Afrjca) to
develop a "sense of territorial unity or national consciousness" and to
institute a "unified political structure for each territory in which al1 in-
habitants would have equal rights in the government and before the
law" '.They contend further that the "requirement" of the Trusteeship
Council is "a totally integrated political unit for each Territory" '.
As noted above the Trusteeship Council possesses no power to lay
down legally binding norms, and its pronouncements couId at most con-
stitute matcrial from which an inference of bad faith on Respondent's
part may be drawn. The first step in an enquiry as to whether such an
inference would be justified, would be toascertain the coliterit and effect
of the pronouncements relied upon as laying down methods to be em-
ployed in the administration of dependent territories. Even in this re-
gard it isclear that Applicants have seriously misrepresented the position.
It is true that in general the Trusteeship Council has advocated the
development of a "territorial consciousness" among the inhabitants of
trust territories.This attitude \vas never, however, divorced from the
circurnstances of the particular territories, and in some cases trust
Vide IV. pp.198 and 2i3.
Althuugh Respondent of course denies that such principles amouiitto legal
norms IJ~ ivhichitsobligations shvuldbc measured-vide para. 1,supra.
' IV, P.452,
+ Ibid., p. 453,
' Vide paras.3-4, suera.I94 SOUTH WEST AFIIICA
territories were eventually, with the approval of the United Xations,
separated into different components, or amalgninated with neighbouring
territories. In this regard Respondent has referred to the Trust Territory
of Ruanda-Urundi, which was divided into two separate States, viz.,
Rwanda and Burundi '; British Carneroons, the northern part of which
joined the Federation of Nigeria and the southern part of rvhich entered
into a political association with the Kepublic of Cameroon 2, and the
Trust Territory of British Togoland, which was integrated with Ghana 3.
14. It is obvious, therefore, that United Nations organs have not
attempted to formulate any universally applicable principle of preserva-
tion of "territorial integrity" 4, or of development of "territorial con-
sciausness" ',as alleged by Applicants. Consequently it does not avail
Applicants to quote certain specific cases where the Trusteeship Council
did make recommendations to such ef£ect unless Applicants go further
and demonstrate that the territories to which the recommendations
related are, in al1 relevant respects, closely analogous to South IVest
Africa. This they signal. fail to do-in fact, they make no serious at-
tempt to do so.
15. Eut liespondent goes further. In so far as Applicants' suggested
"norm" has heen applied in African territories where conditions are
analogous to those in South West Africa, particularly as regards ethnic
diversity, the results liave often been calamitous. As has been shown,
the forced preservation of "territorial integrity" has frequently resulted
in bloodshed, disorder and chaos 5. Further exarnples are given in the
Annexes to this Chapter, The reasons for these manifestations may be
found in the generally observable fact that there arepeoples alrd groups
(nation osr embryo nations) whick are for al1practicalpiirposes +rotassimi-
lable,the one by the other, becauseof g~nwillingnessto becomeassimilaied.
The same psyciiological, emotional or cultural attributes which prevent
assimilation, frequently result in a situation in which the groups con-
cerned canrzotgovern one couvztryjointly in a manner wha'chis fair and
acceptabZelo both or al1 of them-the wnderlying reason being not that one
is superior and the otAer(s) inferior, bidsintfilihat thediferences bet-weea
them are toogreal.
16. Events throughout world historp have provided many examples
of the truth of the above propositions, and have shown that they apply
not only across colour and racial lines hut also within them, e.g., as
between White and White, Oriental and Oriental, and African Native
and African Native.
Some instances which occurred outside Africa rnay be mentioned
briefly.The partition between India and Pakistan is today almost an-
cient history, and nobody wouId suggest that the inhabitants of these
two States could have governed the whole area "as an integrated unit" 6.
It is worth recalling, Iiowever, that sucli an attempt was indeed made at
the time, but that such serious difficulties, including rioting with wide-
spread 1ossof life, were encountered, that the final decision leIl on par-
' Vide II, p452.
Ibid., pp452-453.
Ibid., p453.
+ 11.PI)450-45 I.
IV, P.452. REJOIXDER OF SOUTH AFRIC.4 195
tition as the only practicable solution l.Another instance ofinassimilabil-
ity of two'Asian groups intes re rnay be found in the presence of a million
Tamils of Indian extraction in Ceylon, which situation has given rise
to well-nigh insoluble conflicts. According to recent reports, an agree-
ment has now been concluded between India and Ceylon \+-hichmakes
provision for the drastic remedy of large-scale repatriation of the Tamils,
the overwhelming majonty of whom were born in Ceylon 2.
The situation between the Greek and Turkish communities in Cyprus
js so well-known as to require little comment, but for the sake of con-
venience Kespondent annexes hereto a brief account of the inter-group
relations on that island 3. As at prescnt no rnutually acceptable solution
for their problems appears in sight-whether one will eventually ernerge,
only time can tell.
Even in the United States of America, where it would seem from the
outside that possible integration between White and Negro is favoured
by circumstances to a much greater estent than in most other countries,
extremelÿ serious difficulties are encountered in al1spheres of the applica-
tion of a poIicy of compu!sory integration, as js shown elsewhere in this
Ixejoinder 4,and the questions whether such policy will in fact lead to
eventual harmonious relations, and if so, over what period of time and
at what cost, seem to remain as open as ever 5.Xot much general publicity
has been given to the situation in British Cuiana, in respect of which
the following has been said:
"A racial division of the worst kind has taken hoId in British
Guiana. East Indians, the predomin:int race, and Negroes, who are
smaller in numbers but physically superior,have allowed themselves
to be drawn into a conflict which many appear unable to under-
stand 6."
And-
"[tjhere is yet another 'solution'-partition. It is a measure which
horrifies most Guianese but one which is nevertheless coming to the
minds of many as the apparent racial impasse loorns larger every
day. Any way out of the morass of racial hatred and political
bittemess must be considered '."
17. The difficulties attendant upon the presence of widely different
groups, in appreciable numberç, in one integrated political entity-of
which the above were some random examples-arise from hurnan be-
haviour which manifests itself generally, and they are accordingly not
restricted in their application to certain times or places. This may be
frirther illustrated by the fact that many States throughout the worldhave
given recognition to the existence of such problems, and to the need
for taking realistic account of them in the formulation of government
policies, by deviçing their immigration laws in such a way as to preserve
their national homogeneity and to prevent the immigration of inassi-
milable elements. Thus the "White Australia Policy" in the field of
Vide Annex XIII, infra.
~\~erZiircher Zeilung (eveninegdition), Xov. 1964.
Vide -4nneu XIV, infra.
' Vide Chap. XI, infra.
Ibid. (Vide Conclusionp,ara.47.)
* Taylor. F., "Race lladnessin the Sugar Rett",Daily Telegraph,2 June 1964.
' Taylor. op.cib. ILIh SOUTH WEST AFRICA
immigration severely restricts the immigration of non-IVhites. The
purpose of this policy has been officially stated to be-
".. . to maintain homogeneity of -4ustralian people in order to avoid
insoluble problerns which arise £rom inability ofEuropeans and non-
Europeans in any one country to merge successfullp into a single
harrnonious community. In such an attitude there is not the slightest
suggestion that Europeans are the superior race l."
A similar poiicy applies in New Zealand, where, in 1960, the then
Prime Minister expressed hirnself as follows with respect to uncontrolled
admission of non-Whites into New Zealand: "If we did decide todo that,
1 believe we would lose our standards and Ourright to thiscountry within
a generation" 2.
In Great I3ritain legislation was passed in 1962 to control the influx
of immigrants, particularly from the newer Commonwealth countries
At the time the British Government Information Office in Johannesburg
issued a comment on the measure which contained the foIIowingpassages:
". .. in spite of the strong racial tolerance that is thetrait of Britain,
strains could easily develop into clashes between immigrants and
the local population ...
Taking everything into consideration it becarne obvious to Her
Majesty's Government that some form of control was essential, both
to reducethe riskof asocia and economicstraiin îzherentin theexistence
of unassimilated communities and to provide itseif with powers to
regulate the flow of immigrant labour as future economic conditions
rnight require '."(Italics added.)
As is noted below 5, immigration which has in fact taken place, prior
to or despite this statute, has indeed led to the creation in Great Britain
of unassimilated communities, and to attendant social and economic
strain, which is beginning to make itself felt also in the political sphere.
Also in Canada there esists a provision entitling the Government to
prohibit or limit in nurnber for a stated period or permanently the landing
in Canada of immigrants belonging to any nationality or race for a
number of reasons, including, inter alia; "because such immigrants are
deemed undesirable owing to their peculiar customs, habits, modes of
lifeand methods of holding property, and because of their probable
inability to become readily assirnilated" 6.
The above esamples (which are, needless to Say, not offered in any
sense of criticism of the policies concerned) al1 serve to establish the
existence of the observable fact referred toabove 7.However, the presyt
proceedings are more particularly concerned with conditions and policies
in Africa, and in the succeeding paragraphs the emphasis will fa11on
-.ents, policies and occurrences in that continent.
18. The existence of differences in Africa of the type discussed in the
lThe Times. 18 Apr. 1962.
*Rand Daily Ilfail-5 Aug. 1960.
' Vide Annex XV, para..5.infra.
VideAnnex XV.
The Immigration Act, ig~o(9-roEdward VII,Chap. 27) asamended in 1919
(9-10George V,Chap. 25).sec.38 (6).
Vide para. 5, supra. REJOISDER OF SOUTH AFRIC.4 I97
previous paragraphwas emphasized in tlie Counter-3lemoriall. Whilst
not meeting Respondent's exposition of facts, Applicants primarily .
content thernselves with relying on the "norrns" said to have been estiib-
lished by organs of the United Kations =.Furthermore, they describe
as being contrary to the "overwhelming weight of authority in the politi-
cal and social sciences" 3, Respondent's contention that there are group
reactions which "exist as facts, independently of any governmental
policy" 4.Elsewhere Applicants particularly indicate that they offer this
discussion in response to Respondent's attempt "to justify its policy
on the basis of cornparisons with human behaviour at al1 times and in
al1places" 5.
Applicants' answer to Respondent is consequently purely theoretical-
they do not venture to join issue on the actual results of the poIicy propa-
gated by them as it affects real people in a real world, but pin their faith
on theories propounded by politicians and acadernicians (which, as \vil1
be shown, do not even assist them) G.For the rest they contend that Re-
spondent's references to events in other parts of Africa are not relevant-
a contention which has been demonstrated to be clearly untenable :.
Indeed, by resorting to such an obviously unfounded contention, Apph-
cants indicate the estent of their embarrassrnent over the intractability
of facts which obstinately refuse to fail into the places pre-determined
for them by Applicants and majorities in the United Nations. Respondent
is unable to oblige Applicants by disregarding unpleasant realties and re-
stricting reference in this case to attitudes espressed by academicians and
United Nations representatives: its responsibilities demand that it pay
attention also to the results of the theories propounded by the said
persons, and that it be guided, inter dia, by deductions dra~vnfrom such
results. To this end, a short discussion of African realitics will be pre-
sented in the iiext succeeding paragraphs. This discussion is offered in
the same spirit as in the Counter-Mernorial 8, i.e., not of criticizing .or
finding fault with the governments of African territories or policies
adopted by former colonial or admiriistrative Powers in situations of
great complexity, but of learning objectively from the facts-including
rnanifested reactions and tendencies-with a view to better consideration
and evaluation of Respondent's own policies.
19. The primary political reality in Africa has been espressed as
follows :
". .. differencesbased on tribal characteristics are not as amenable
to modification as the relatively compressed demographic differences
which serve as indications of power in Ourown society.
Iwish we had a good answer to this, but 1think that this is the
crux of the problem confronting the African leader 9."
11,PI- 45,-455.
IV,dpp. 273 and 305.
' Ibid., pp 302-303.
Ilid.. p. 305.
Vide Chaps. VI-XI. infva.
Vide sccA, paras. 21-23,SU~YQ.
VideII,pp. 383 (para.5) and 449-4.50 (paras. 3and 36).
Ashford, D. E.,"The Last Revolution:Community and ~ation in Africa",The
A 11nalof the AinericoAcademy of PolificatzdSocial ScienceVol.354 (July r964).
P. 45.19~ SOUTH AFRIC.4
This confirms another general statement of the same purport quoted in
the Coitnter-Memorial I to whicb attention is invited.
Where deep-seated tribal, racial or ethnic differences have been ignored
in African States, the result has frequently been bloodshed and chaos.
In so saying, Respondent must not be understood as suggesting tliat
every difference between groups must riecessarily be an impediment
to political integratioti. Each case rnust be determined on its own merits.
It sornetimes occurs that differences which appear to an outsider as
unsubstantial or even insignificant, nevertheless result in complete un-
assimilability, whereas apparent IJIniajor differences may, by the pressure
of circiimstances. not constitute an insurmoiintable obstacle in the way of
integration. As a rule of general probability, however, esperience has
shown that major ethnic differences need much more delicate handling
than the crude principle of one man one vote in an integrated society
which is proposed by Applicants. Examples where this approach has
failed disastrously may be found in the Annexes to this Chapter. Thus
tliere is the case of Rwanda, the very existence of which, as noted above
reflects a departure from the "norm" which Applicants seek to distil
from United Xations practice. It is clear, moreover, that the division
between Rwanda and Burundi was not a drastic enough remedy forthe
ills of Ruanda-Urundi-within Rwanda itself the differences and antago-
nisrns between the Hutu and the Tutsi were too severe to be contained
within one State. In that case efforts at integration resulted in the virtual
estermination or espulsion of the Tutsi 3. Despite these weii-known facts,
Applicants refer with approval to recommendations regarding "sweeping
although gradua1 change in local government withtoutreferenceto the
wishes of the inhabitants" of Ruanda-Urundi, and to "the inzporta~ice
attached by the Council to a unified fiolitical structure" * for the same
territory. The impression is created that Applicants are completely
unaware that the results of Trusteeship Council policy in Rwanda can be
measured in tens of thousands of deaths and hundreds of thousands of
refugees.
Another cxample is the Congo (Leopoldville). A short resumé of the
events in that unhappy State is giveri below 5. For present purposes it is
sufficient, firstly, to quote the following words of the Secretary-General
of the United Nations:
"The current difficultieç in that country reflect çonflicts of an
interna1 political nature with their main origins found in the absence
of a genuine and sufficiently widespread sense of national identity
among the various ethnic groups composing the population of the
Congo 6"
Secondly, it may be noted that, iii the rnidst of a spate of newspaper
reporting from the Congo on the recent bloodshed and atrocities in that
territory, the following appeared : "The consensus here appears to be
111,p. 450 (para. 37).
2 Videpara. t3. supra.
VideAnnex VII, infra.
'IV, p. 453. (Italics added.)
'Annes III, infra.
Ibid.para. 4.infra. REJOINDER OF SOUTH AFRICA I99
that partition of the Congois inevitable, and the onIy hope of solving the
crisis, the New York Times reports" l.
In the Sudan, attempts at creating an integrated State between Arabs
and Negroes have led to massacres and fiight,as is demonstrated below 2.
Were the death toll runs into thousands and the number of.refugces into
tens of thousands 2.A recent news report on a dernonstration at Khar-
toum by 5,000 Africans, which erupted into violence, stated, inter alia:
"At first held in check by the organisers . .. the crowd chanted
slogans, calking for the separation of the Sudan's southern provinces
from the rest ofthe Arab-dominated country 3."
The same two groups, Arabs and Negroes, clashed in Zanzibar where it
ivas the Arabs who bore the brunt of violence and were forced to flee *.
20. Respondent does not wish to suggest that ethnic differences in
Africa have necessarily led to bloodshed. In certain States some success
seems to have been achieved in containing the disnrptive forces inherent
in ethnic differentiation. Respondent wishes to emphasize, however, that
the problem of ethnic diversity is something which has to be squarely
faced-it \vil1not disappear conveniently once the formula of one man
oiie vote in an integrated Society is applied. It is significant, therefore,
that in African nations with wide ethnic differences among the popula-
tion, the greatest degree of stability has been attained where the syçtem
* of government takes account of such differences. Itwill be seen that in
Nigeria, for instance, a solution was sought by way of a relatively loose
federation 5. Although this did not eliminate graup frictions 5,it at least
seems to have controlled them to some extent. It is instructive that a new
fourth region known as the Mid-West state, has recently been created
with the support of aii political parties in Nigeria in an atternpt at
relieving some of the strains still caused by ethnic diversity 6.Whether
Nigeria has found the complete solution for its problems, only time will
tell.Some observerç have suggested that a further partitioning of the
country would be necessary 7.
21. .4nother State with ethnic problems is Ghana. In that country the
problem was brought within manageable proportions by the establish-
ment of a very strong dictatorial type of government. It may be noted
in passing that one of the reasons for the creation of dictatorial single-
party zystems of government in a nurnber of African territoriesmajr well
be the necessity of curbing inter-group frictions. Tttusit has been said:
"... perhaps the majority of cases of successful regional integration,
if hardly ideal models for Africa, have been based around the subjrc-
gation of the surroundiltgareasby force, or the domination of thcm by
othermeans 8" (italicadded),
and-
'
*TVideAnnex VIII, infra.
The Pretoria News, 7 Dec.1964.
+ Vide :lnnex XI, infra.
VideXnnex VI, infra.
Ibid., para. 5.
1'6U..para.6.
Kilson,M. L.. "Authoritarianand Single-Party Tendencies in African Politics",
World Politics (Jan. 1963). 273.2O0 SOUTH IVEST AFRICA
". .. both Ghana and Guineü have experienced significant tribal-
centered political conflict ; and since it isa major source of political
instability in societies in process of forming coherent nation-state
cornrnunities,someof the single-paty tendencies in the two cou ntries
may be attributable to an attempt to overcome this conflict l".
Reference may also be made to the following prophetic utterance. made
as long ago as 1955 :
"The Europeanized Gold Coast is not in any true sense building
up democracy, and it will not remain a political unit, despite the
ability and magnetism of Rlr. Nkrumah, its pseudo-Parliamentary
Premier, because tribd Ashanti chiefs will not allow a Europeanized
coastal upstart to lord it over them . .. Such States have no /tope
of sumival in Africa rtnless held together by rfclhlessdespotisms 2."
(Italicsadded.)
Itseemsclear that Kenya's development into a one-party State, which
is sketched below 3, was also infiuenced to some extent by the ethnic
diversity of its population.
22. A particular manifestation of ethnic conflict occurs where a sub-
stantial portion of the population is of European origin. In the Counter-
Mernorial Respondent demonstrated that, despite atternpts in the past,
it has never been possible to establish in an integrated political entity a
basis of real and successful CO-operationbetween a settled White com-
munity and African Native populations. References were there made
to the Central African Federation 5. Kenya 6, and the former 13elgian
Congo 6.Since the filing of the Counter-Mernorial the facts in respect of
these three territories have become even stacker. As regards both the
Federation and Kenya which are dealt with briefly below 7,the words of
Elspeth Huxley are particularly apposite, viz. :
"Alas, multiracialism is dend beyond hope of revival and there
can be no sharin of power, only seizure of it. If the whites relinqiiish
their grip then t 1e black majority will take it, as in Kenya-and as
blacks; African racialists, not as so-called 'civilized men' measuring
up to some common non-racial standard politically expressed in ri
qualified franchise K'"
The expulsion of Europeans from Algeria is also a well-knoivn facet of
modern history, and is dealt with below 9.Apart from instances ~r~het-e
Europeans were forced out of newly independent States by rcason of
violence and disorder, the general lowering of standardsand developrnent
of black despotisms, to which reference was made aboveIo, have induced
many White people to depart.
23. Respondent cornmenced this discussion by quoting as an example
' Kilson. M. L., "Authoritarian and Single-PartyTendencies in African hlitics",
WorldPolitics {Janrg63),p.275.
2Lord Altrincham. Kenya's Opporlunity (1955),p. 59.
Vide Annex V,infus.
'Il, pp.454 and 468-471.
Jbid.pp. 454 and 469-470.
Iliid., pp. 454 a469.
Videas regards Kenya. AnnexV, infrn.as regards the Federation, Annex XII.
The Times. 24Sep. 1963.
Vide Annex 1, infrn.
'O Videpara. 6. supra. KEJOISDER OF SOUTH AFRICA 201
a State referred toby Applicants asone in which the policies of the Trus-
teeship Council were applied, viz., Rwanda l. The two other examples
referred to by Applicants also constitute a poor advertisement for such
a policy. They are the former French Cameroons and Tanganyika 3.
Reference has been made to the "latent or active terrorism" suffered by
the French Carneroons 4. The recent history* of 'Tanganyika, as dealt
with below 5,also cloesnot inspire a great deal of confidencein the merits
of Applicants' suggested "norrns". As will be seen, this countryattained
independencein 1961, became a one-party State in 1963, and suffered a
serious mutiny in r964, wliich could only be qiielled with the assistance
of foreign troops. Political repression is rife 5. Thereafter it forrned a
political association with Zanzibar, adopting the name Tanzania. Ac-
cording ta a recent report by tlççociated Press, the general attitude of
the Native inhabitants of Tanganyika is one of opposition to the resident
Europeans 6.The report continues:
". . . with Africanisation proceeding, the position of Whites has
become steadily more insecure . . . Many Britons drive to work in the
morning and wonder if they will have been replaced by an African
by 4.30 p.m. ""
It would seem that the "peaceful and harmonious atrnosphere of good
will" which so impressed the 1960 Visiting Mission was not strong
enough to survive the application of the "norrn" which Applica~its are
now wishing to impose on South West Africa.
24. To sum up, Respondent disputes that the Trusteeship Council
has laid down any generally applicable rule that truçteeship territories
should be administered as single integated units with single centralized
governments. Furthermore, everits in Africa, including former trust
territories and elsewhere, have conclusively established that the indis-
criminate application of such a rule, particularly where there exists an
ethnically differentiated population, is likely to have calamitous results,
whether by reason of rebellion or disarder, or through the imposition
of control by authoritarian means or even from both. Consequently
Respondent contends that Applicants have signally failed to establish
any basis for contending even that an integrated administration with
universal franchise would be a desirable form of government in South
West Africa. A fortiori of course, there can be no suggestion of anybad
faith on Respondent's part in resisting Applicants' claims to impose
such a system.
l Vide para.19,supra.
Referredta atIV, p.454.
IVi PP 4.52453 and 454.
Vide para.IO.supua, and Annex II,e~zfra.
5 Vide Annex IX, in/ra.
RalzdDaily Elail.14Dec. 1964.
' IV,P.454. Annexes to Chapter III
Annex 1
Before independence was conferred on Algeria in 1962, there were
approximately r inillion Europeans living in the country; they consti-
tutedroughly ~oper cent. of the total population '.The history of violence
and bloodshed in Algeria, which marked the struggle between the French
forces, theWhite settlers and the Aigerian nationalists in the years before
independence, is well known. In the eight years from 1954 to 1961,
according to one report, some 2,348 Europeans and 15,674 Moslems were
killed in the fighting, while 23,405 French soldiers died in AIgeria during
the same period 2.lmmediatelv after Algeria became independent there
was a massive exodris of theWhite population-about 800,000 Europeans
fied from the country 3. During 1963 still more Whites left the country 4.
The departure of the Europeans, together with their capital, technical
know-how and purchasing power, has had a markedly adverse effect
on Algeria's economg 5.In October 1963 it was reported that the Presi-
dent had announced the confiscation of about 2% million acres of land
still remaining in French ownership 6. Shortly before, the friction between
rural Moslem groups which had already been apparent on the eve of
independence 7,flared up in the form of a revolt by the Berber people of
the Kabylie region who represent about one-fifth of the total population
of Algeria and who have been traditionally distinct from the rest of the
Algerians 9.
l Africa InstitiitehIaps and Statistics, Soi (July 1962),p. II.
The Star.27 Aug. 1962.
Africn 1*1sliiuBulletin. Vol. II, ho. 1(1 Oct. rg62),p. 503.
The Daily Telegyaph, Ijuly 1963. ,
The AtlanticReport, Apr. 1964, p.14.
The Guardian, 2 Oct. 1963.
Vide G. Mansell, Tragedy in Algevia.pp. 30-32.
The Times, r Oct.1963; The Star,2July 1962, 3 July1962, Ir July 1962,nCIJuly
1962, 30 Aug. 1962 and 4Sep. 1961.
The Stav,30 Sep. 1963. Annex ïï
I. After the inclusion of the French Cameroons in the French Union
in 1956 l, and the introduction of universal adult suffrage ',serious
political unrest continued unabated in the country. In May 1960 the
conditions were described as follows:
"For over four years the French Camerouns has suffered latent or
active terrorism. From June 1959 v,iolence reached the pitch of the
Mau Mau in Kenya; first 20 Europeans were shot or hacked to death,
and then an average of 50 African civilians have been rnurdered
every mont h. Visitors to theBamiléké province travel under military
escort , passing ares of destruction and neglect : shattered, blazing
lorries, trenches slashed across the roads and intensely cultivated
plantations of bananas and cocoa smouldering in untended deso-
lation .. .On January 1st thisyear [xg60 ]ith II out of 21 depart-
ments in a state of emergency, with Premier Ahmadou Ahidjo, an
inarticulate but tough little hfoslem ruling by decree, the Cameroun
Republic achieved its independence of French trusteeship ... In
February Premier Ahidjo submitted a new constitution to a referen-
dum. One of the opposition leaders, Myi Matip, called for its rejection
and the terrorist ernigré leader Felix-Roland hloumié for a total
boycott. Only 45 per cent. voted in the BamiIéképrovince, but
int~midation may have accounted for some of the abstentions; 57
women and children were rnurdered the night before the referen-
dum ... Two months later on April ~oth, the first general elections
were held in an atmosphere of continued violence ... 2"
2. The Cameroon Republic, born on I January 1960 ,oined with the
British Southern Cameroons to form the Cameroon Federal Republic
under a Constitution which became effective on I October 1961 3.The
constitiient states are loosely bound, preserving a large measure of inter-
na1 autonomy. The former Cameroon Republic, now the Eastern Came-
roon in the federal Repüblic, has continued on its unsettled political path,
rapidly developing towards a one-party state.
This \vas achieved by dissolution of an opposition party congress-
according to Victor T. Le Vine, "at bayonet point" '-and the arrest,
trial and conviction of four opposition leaders on a charge of "inciting
hatred against the Government and public authority, inciting conflict
between ethnic and religiouç communities and disseminating news
prejut-licial to public authorities" 5. And the same author concludes
that-
' Vide 11,p.522.
After Tervorism, Peace for the Cameroun?, Afr6May 1960.
Vide II, p. 9 (para.47); and Le Vine. V. T., Five AfricareStates, edited by
Carter,JI., p. 308.
' Le Vine,op.cil.p. 323,
Ibid., p321.204 SOUTH iirEST AFRICA
"[wJhatever the truth or falsity of the government's charges against
the opposition and however one interprets the refusal of the opyo-
sition parties to join in theparti unifi th,re isno question that by
July 1962 the East Cameroon had become, to al1 intents and pur-
poses, a one-party state l".
3. After tlie practical nullification oi parliarnentary opposition, opposi-
tion to the Government has continued in the form of terrorist activity.
Le Vine commentsthat-
"[dlespite the repeated avowals of the East Cameroons government
that terrorism has definitely declined and indeed altogether dis-
appeared in sorne sections of the country, reports continue to corne
from the Cameroon that guerilla activity is still very much of a
problem. The terrorists apparently continue to find their main
support among disgruntled Bamiléké and within the nonveaw
arrivées of the towns. Two sorts of maquis groups must be distin-
guished. One type includes the groups led by highly politicized UPC
leaders, some of whom were trained abroad in guerilla tactics. These
groups often pokess weapons apparently smuggled in from Guinea
or Ghana. The second type seems to consist of bands taking ad-
vantage of confusion and unrest to pillage, kill, and steal; they
' generally operate under ad hoc leadership and without specific
plitical motivation 2."
4, "Cameroonization" of the civil services has also created serious
difficultiesand retrogression in standards of administration.
Le Vine comments, in a passage already quoted above, that-
". .. the government has recmited a large nurnber of individuals
who çeem iIl prepared for their tasks and more concerned \vit11the
status of their positions than the performance of their duties.
It is therefore not surprising that many Cameroonians have been
keeniy disappointed in the performance of their officiais.IPresident
Ahidjo is to be believed, the East Cameroon civil service can be
charged with nearly the entire catalogue of bureaucratic short-
comings. In March 1962 he excoriated East Cameroon officialdom
in a well-publicized mernorandum, parts of wliich deserve to be
quoted at length :
A marked laxity ;mong nearly the quasi totality of the civil
servants is becoming more and more apprirent ... In the majority of
the administrative offices, even up to the central service and the
different ministries, there reigns such carelessness and such anarchy
that even the least informed and ieast aware are alarmed and
sorely troubled over the future of our civil service.,.
. ..among these failings are intemperance, dishonestg, and lack of
courtesy; poorly done work, ïateness and absenteeism, lack of .
discipline and insubordination .. . inflated remunerations, and the
simuItaneous holding of several jobs ... Furthermore, civil servants
should refrain from overt crjtjcjsm of and jnsults tathe Government
or its policie3."
1Le Vine, op. cit.. p. 324.
Ibid., pp332-333.
Ibid., pp. 338-339. Annex III
I. The tragic and chaotic events in the former Uelgian Congo after it
became independent, the intervention of the United Nations to restore
order there, and the still continuing fighting, violence and atrocities in
the territory, are al1 matters too well known to be recounted here. The
important point for Respondent's purposes is that the dificulties en-
countered in the Congo were due in large measure to the differences
between the various ethnic and cultural groups in the country.
As elseivhere in Africa, tribal and group loyalties in the Congo have
proved to be stronger than a feeling for national unity l.The surprisingly
rapid political changes in the territory have not destroyed the continuity
of Xfrican cultures: even in the violence which followed Helgium's
sudden withdrawal from the Congo, the importance of ethnic bonds and
traditional hostilities remained clearly apparent 2. Political parties were
organizecl dong tribal lines 3; thus political representation and organi-
zation stirnulated tribal rivalries and intensified ethnic separatism '.
Self-government has legitimized or encouraged territorial divisions =.
2. It has been said that itmust be expected that.no lasting peace and
friendship could be achieved in the tuTo Congos or indeed' in Central
Africa until the aspirations of ethnic groups are met 6. But apparently
the Uelgiiin authorities at the time of independence did not explore the
possibilities of a federal or regional solution to the problems of the Congo;
instead, independence conferred full powers on the Central Govemment
at Leopoldville. In the result, the fear of domination of one ethnic or
tribal group by another has tended to accelerate the trend toward the
'"balkanization" of the territory 5.Various ethnic groups have repeatedly
demanded regional autonomy for themseIves and have threatened to set
up independent states '.
3. The pattern of separatism which is evident in the Congo and else-
where in Africa has given rise to the following recent comment:
"Events in East Africa, the Congo and West Africa clearly portray
tliat Our contiiient is fast becoming, as it were, an aggregaliolr of
aloms, disorganised. discontented alad antagonistic. How can it be
possible for slates comfiosed of clusfers of nationalitics simmering
l Carter. G. JI., Indepcizdence for Africa (rg61)p...8;.Rothchild, S.,Jolirnnl O/
I~~t~rizalioiilflairs.Spring 1961. pp. 25-16.
Rascorn.iV. R. and IIerskovits. BI.J., Cmtinuity and Cllange inAfrica, p.(vii).
"utton, F. X.,"Authority and Authoritarianism in The Xew Africa". joitriinl
of Inleriinlional Agairs, Spring 1961.p.16.
' Carter, op. cil.. 18.
Lemarchand. R., Rmerica?~Political Scietzce Review, Junc 1gG2,at pp. 404-405
Osinowo. T., New rllrica, Apr. 1964,p. IO.
' I'anikkar, K. Al.,'Revolutionin Africa (1961). pp. 17-r8; Bnrllerinof tire Africa
IizstittrlPretoria, Vol.II. So. 17 (1 Oct. 19621,pp. 496-503; ibid.
"othchild, D. S.."The I'olitiof African Separatism". journal of International
Affairs. Spring 1961,p. IS.206 SOUTH WEST .4FRICA
with race consciousness to develop national attitudes which are
necessary for progress l?"
Moreover, it must be stated that the Congolese are not a people, but a
collection of large ethnic groups, each of which is a people. It iç not
surprising, therefore, to find that it has been argued that it is unwise to
talk of the objective in the Congo as being "unity", when the best tliat
could be hoped for was a loose federation of tribal satrapies, and "unity"
imposed by an iron authoritarian régime 2; and also that it might be
better to allow the country to fragment into smaller, more manageable
units which could be aided and organized one by one 3.Ethnic differences
have prevented the development of the Congo as a unitary State on a
voluntary basis and it seems that the peoples of the Congo cannot be
welded into a unit othenvise than by the use of farce, such as was used in
Ghana in respect of the Ashanti 4.
4. There seems to be littledoubt that the inter-group fighting that has
occurred in the Congo after independence is in large measure directly
attributable to the fact that the constitutional arrangements for the
country failed to give adequate recognition tothe separate identities and
aspirations of the various ethnic groups. In the early days of the crisis it
was observed that Congolese displayed a very sharp concept of ethnic
differences within the African tribes; men were beaten to death for no
other crime than that of belonging to an alien tribe; the Baluba and
Lulua slaughtered and mutilated in the Kasai will never be counted =.
Later, hostilities and bloodshed resulted frorn the secessionist movement
in Katanga. Recently, reports on the still continuing civil war in the
territory indicate that the rebellion is essentially tribal and motivated
partly by purely local considerations 6.
The United Xations Secretary-General in his report on the withdrawal
of the United Nations Force in the Congo çtated that :
"Four years have been gained in which the Government and the '
people of the Congo have had the opportunity to corne to grips with
their vast problems and to be assisted in meeting some of the worst
of them. Four years have been gained in which Congolese public
administrators, doctors, professional people, experts of ail kinds,
and technicians could at Ieast begin their training and begin to gain
experience under the guidance and with the expert help of personnel
of the United Nations and its specialized agencies. These long-term
effortsare now commencing to bear fruit, and they give cause for
hope for the future of the Congo 7."
l Osinowo, T., New Africa, p.g. [Italicsadded.)
The Saturday Evening Post, Vol. 234,NO. 7,18Feb. 1961.
New Daily, 23 Apr. 1964.
'Cf. Mazrui. Ali Al'amin: "Edmund Burke and KeAections on the Revolution,
in the Congo", Comparative Studies in Sociely and Histovy (Jan. 1963), p. 124;
Bretton, H. L.. "PoliticalProblems of Poly-Ethnic Çocietiesin \.Vest Africs",
Fz'fthWorld Coîzgress, InternationaPolitical Science AssociationParis. 26-30 Sep.
1961, p. 15.
Munger, S., Afvican Field RePorts, 1952-1961P,art 1,pp. 180-181.
The New YorkTimes, 5 Aug. 1964, p. 8.
' U.N. Doc. S15784, p.38. REJOlNDER OF SOUTH AFRICA z07
The Secretary-General concluded his report by çtating that-
". ..a further extension of the stay of the Force in the Congo would
provide no solution to the remaining problems of the Co~igo. The
current difficulties in that country reflectconfEictsof artinterna1
political nature with their main origins found in the abseme of a
genuine and suficienlly wide-spread senss of nationalidsntity umolzg
thevarzousethnicgroupscomposingthepopulation ofthe Co,~zg.o..The
United Nations cannot perrnanently protect the Congo, orany other
country, frorn the interna1 tensions and disturbances created by its
own organic growth toward unity and nationhood l." (ltalics
added.)
That this position was clearly understood by the Congolese Government
is evidenced by the fact that the Congolese Prime >finister wants to
regulate local administration according to traditional tribal lines. In iact
the Congolese Prime Minister is reported to have stated:
"The [tribal] çystem was devised by our ancestors for the main-
tenance of law and order. So rnuch of the trouble today is attribu-
table to the breakup of a time-tested çystem ?.''
U.N. Roc. S/5754, p.42.
Newsweek, Vol.LXIV, Xo. IO (ig Oct. 1964). 33. I. The people of Ghana may be roughly divided into two broad groups:
those of the south, who are Negroes, and those of the north, who are of
the Negroid type '.Two of the main groups in the country arethe Fanti of
the coaçtal region and the Ashanti of the interior. There was a history of
confiict between them even before the advent of colonial administration 2.
Before Ghana became independent there were gravedoubts as to whether
the Ashanti in the riorth and the Ga and Fanti in the south couId keep
together 3.-4fter independence, tribal or ethnic parochialism persisted in
Ghana ',and even now many Ghanaians still have a stronger allegiance
to their local tribes than to the nation of Ghaiia Like other large groups
in Bigeria and in the Belgian Congo, the Ashanti in Ghana have de-
rnanded regional autonomy to the largest extent possible, feeling that to
be the only way in which they can preserve their own special virtues 6.
Similarly. party loyalties in Ghana were bascd oii ethnic considerations,
until the formatioii of parties along such lines was forbidden by law,
after which al1 the main parties in opposition to tlic dominant ruling
party regrouped to Lormone United Party '.
"\Vhat is happening is that large groups al1 over West Africa
support the parties not because they approve of their policies but
tvibril consideralions /orce theseparties into aposture O)defiance. Thus
the government belongs to one ethnic group and the opposition is
led by anot her grou p. whichcertainly would noi be keaitky either for
democ~acy ut/or Politicai development 8." (Italics added.)
2. In Ghana. unlike Nigeria, no real attempt kas been made since
independence to respect the ethnic divisions of the population. Thus,
the Government of Ghana has Fefused to take into consideration the
separateness of the Ashanti and the Northern Territories 8.Instead, the
governing party has by various means ensconced itself in the position
where it rules witii practically absolute powers 9.There can be little doiibt
that conflictsbetween ethnic groups have contributed materially to the
development of Ghana into an authoritarian Statc, and that the aspi-
rations of the various groups for recognition as separate entities could
nat have been kept incheck except through the dictatorial and repressive
methods applied by the ruling party. It has been observed that nearly
al1single-party situations in African States, political instability stemrning
'Bourret. F.M..Glrarra-The Ruad tu Zndepcrrdctrce19x9-1957 [rgCiojpp. 5-y.
Ruell, R. L., The Nntive Problemin dfrica. Vol. 1(1928). pp. 75s-$9.
'Sampson, A.. Conritto?SeizseAbout Africa (ig60),p. 33.
* Apter, D. E.."The Role ofTraditionalisrn in theI'olitical Afodernization of
Ghana and Ugsnda", IVorld Politics, Vol. XIII, So. I (Oct. rg61). p. 6j.
"Skrumah Tighteiis the Reins", Senior Sckolaslic. Vol84. Xo. 8(20Mar. 1964)~
P. 34.
L'anikkar,11.II., Hevolutioi?zdfvica (I~GI),pp. 79-80.
Steinberg, S.W. (Ed.), Statesman's Year-Book 1363. p513.
Panikkar, op. cit., p. 17.
l'irlpara 3, iiafrct. REJOISDER OF SOUTH AFRICA Zog
from tribal confiict or unrest has contributed in some measure to one-
party government. Thus,
".. . both Ghana and Guinea have experienced significant tribal-
centered political conflict; and since it is a major source of political
instability in societies in process of forming coherent nation-state
çommunities, some of the single-party tendency in the two countries
may be attributable to an attempt to overcome this conflict '".
Other authorities have commented on the situation in Ghana as follows:
"Countries like Ghana that have taken strong measures have
pointed to the ruthlessness of their opponents as justification-and
with much plausibility. Tliere seems little doubt that African govern-
ments have graver problems of security than the colonial govern-
ments had-they are more intimately involved in potentially explosive
African diflerences. These, one ventures to think, are some of the
realities behind the ideology of national unity and one-party
systemswhich Westernobservers often find so disquieting 2." (Italics
added.)
"Violence tends to breed violence, and rnonopoly of political
expression tends to breed conspiracy and extra-constitutional
resistance. Ghana and Guinea have both announced in their briel
periods of independent stateliood two or three major conspiracies to
overthrow the govemment hy force, to açsassinate the presidents of
the republics, to subvert the army and so on. And both have alleged
a score of minor conspiracies to lesser but in authoritarian contest
serious ends .. . Both have generally explained their actions on the
basis of putting down dissident elements threatening the success of
the nation-building program of the government by emphasizing
lribalism and sectarianism of one kind or another 3." (Italics added.)
"The Europeanized Gold Coast is not in any true çense building
up democracy, and it will not remain a political unit, despite the
ability and magnetism of Alr. Nkrumah, its pseudo-Parliamentary
Premier, because tribal Ashanti chiefs will not allow a Europeanized
coastal upstart to lord it over them .. . Siich States have no hope
O# szo-vival in Africa etnless lreld togelher by 'ruthless despotism '.':
(Italics added.) . .
3. Themeasures taken by the dominant party in Ghana to suppress
criticism of and opposition to the Govemment are well-known mattersof
recent history. A brief reference to the more important measures will
suffice: the deportation ofcertain leaders of the northern region in~957,
after a special Act of Parliament had been passed, reversing a decisioii of
the Supreme Court 5; the passage in the same year of the notorious
"Emergency Powers .Act" and ail Act yrohibiting the electoral formation
' Iiilçon, M.L.,"Authoritarian and Single-Party Tendencies inAfrican Politics",
World Polifics. Jan1963, p. 275.
2 Sutton, F.S., ".luthority and ~utharitariariismin theSew Airica", Jourtaal
O/ I?rferiiafionAguirs, Spring 1961,p. IG.
Rivkin, A.,"The Politics of Kation-Uuilding: Problems and Preconditions",
jortr?raO/ Zizteri~atiotA#~irs. Vol.S\'!, ;io.2 (19621,p. 139.
Lord Xltrincham, Kenya's Opporftini- (1955).p. 59.
"Consolidation of the Djctatorshipof Dr. Skrumah in Ghana". Africa Illslilzrle
Bulletin.5'01. 1, i-17 (1 Xov. ig61).p. IO.210 SOUTH WEST AFRICA
of parties of a tribal, ethnic, religious, or regional character '; the adop-
tion in 19jS of the "Preventive Detention Act" 1; the wholesale arrest of
opposition party supporters in 1961 2; and the "nationatization" in 1962
of the last independent press organ in the country, which had been
strongly opposing the poIicies of the governing party 3.The Government
has the power to expel any non-citizen without giving cause and to
confine any citizen to a certain area, from which he cannot move ';
"[o]pposition to the President can result in detention for an indefinite
period" I,and numbers of people opposing the Government have in fact
been detained 6.
4. Generallp it has been said that-
"[tlhe insistence on uniformity and canformity as the manifestations
of national coherence and national unity has led the radical nation-
alist states in Africa-primarilv Ghana, Guinea and Mali-to inter-
na1regimes in which the single or dominant party is superior to the
state and manipulates state power in the interest of party doctrine.
The party tends to be monolithic and all-encompassing .. .The
parties tend also to have corps of party militants to exercise overt
pressure and force where needed without interference from the
police or rnilitary, which in turn are available for use to the same
end when required 7."
subversioii
In such circumstances, violence tends to breed violence
is the onlv waÿ in which opposition to the governing party can be ex-
pressed 5:and in the last two years there have been three attempts to
assassinate the President 5,coupled with major conspiracies to over-
throw the government by force Y.
5. The dictatorial character of the régime in Ghana has heen confirrned
by recent events S. In the beginning of 1964 a referendum was held to
seek approval for constitutional amendments rnaking Ghana formally a
one-party State and givingthepresident the right to disrniss 'udges of thc
Supreme Court and High Court at any time lu.The result Oi the refecen-
dum was ovemhelmingly in favour of the proposed amendments;but ir-
regularities in voting procedures, such as the removal or sealing of "No"
boxes and the ticking off of voters' names before any voters had arrived
to cast their votes, and the announcement of results in certain areas long
before al1 the ballot boxes could possibly have been brought in 5,have
given rise to the description of the voting as a "mockery" andofthere-
ferendum as "farcical"5. Before the referendurn thegoverningparty had
warned: "Those who think theÿ can hide under the so-called 'secrecy' of
"Consolidation of the Dictatorship ofDr. Xkrumah", op cil.,p. II.
Ibid.,p. 13.
3 "Ghana: ~ationa~ization ofa Seivspapcr", .-I/rica Instiflife t3rc~lefiirII,01.
xo. 19 (1Xov. 1962). p. 548
' Carter. G. JI., Independence for Afrisa (1961). I35.
"Ghana", Atlantic Report.hiay 1964. p.2s.
"Ghana Extends Preventive Detention". lf'esAJrica, g Sov. 1963, p. 1275.
Rivkin, A., "The Politics of Sation-Building: L'roblems and lJrecunditions",
ourna 1ofInternational .i#airs, Vol. SV1, SO. 2 (1962),pp. I3s-13%
Ibid.,p. 139.
Rivkin. A., "The Politics of Sation-Building: 13roblemsand I'reconditions".
.jourrial of I>ifernatioA#airs, Vol.SVI, So. 2 (I~G?) p. 139.
Africa Digest,Feb. 1964, p.117. REJOISDER OF SOUTH AFRICA SI1
the polling booth 'to fool us must know that the days when we could be
fooled are gone" 2. It haç been said that the results of tlierelerendum
reveal the extent not of the Government's popularity but of the fear of
persecution Ghanaians now livein 2,
In faceach ballot paperhad thevoter'sname and serial numberon it: National
Raview, 18Feb. 1964.
"Ghana", Atlantic Report, May 1964,p.28. Annex V
I.The population of approximately 6,254,000 is heterogeneous, con-
sisting of different racial and tribal groups. In 1957 it was estimated
that the population included approximately five-and-a-half million Afri-
cans, 62,000 Europeans, 161,000 Indians and 34,000.4rabs. The Africans
are divided into a considerable number of tribes, amongst which the
Kikuyu represent close to 20 percent. of the total African population, the
Luo approximately 14 per cent., the Baluhya 12.5 per cent. and the
Kamba approximately r1.7 per cent. Remaining tribes range between
z per cent. and 6 per cent. of the total of the -4frican population.
2. Despite the 13ritish idealof a peaceful muIti-racial State, intergroup
relations have in the past been, and still are, strained, and have had a
profound effect on the development of events in Kenya. As early as 1920
there was a Young Kikuyu Association the main object of rvhich was-
". ..to stimulate enmity between black and white andto get the
people to consider that they are in a state of slavery which has bceii
irnposed on them by Europeanç l".
The Mau Mau movement, Kikuyu dominated and led, inter alia,by the
present Prime Minister of Kenya, Jomo Kenyatta, which incIuded in its
aims ". . .the elimination of European and Indian influences in Kenya
and the setting up of an all-African state" =,placed Kenya in a state of
emergency from October rgjz to January 1gj6, duririg which time nume-
rous atrocities were committed and thouçands of people lost their lives 3.
3. 115th regard to the relationship between Whites and non-IVhites
Elspeth Husley and irlargery Yerharn commented that-
"[tlhere are plenty of Europeans who will not, and will never, \vil-
lingly sit down to a meal with an African and there are plenty of
Africans (even more, 1 suspect, in proportion), who wiIl nelrer aban-
don their dream of gettingrid oftheEuropeans altogether, forever "'.
African feeIirigagainst Whites is illustrated by the semarks of a senior
member of the African government. Louis E. Lomas 5,American Negro
and protagoiiist of integration, comments as follows on a speech by
Tom Xboya, Kenya llinister of Justice:
" 'Then the Europeanswant to know if they cnn stay on in Kenya.
1 tell them "sure" ',hlboya said, almost doubling up witli laughter.
The audience knew what he meant. 'Rut if they stay they mujt get
out of politics.\f7eare going to have an all-black Parliament, and an
all-black government. it7eare going to djvide the land among our
people. If the Europeans want to stay they can stay on as squatters.
If they want to work they can work for us, and they must work on
lCmnd.. So. 1030,p. 39.
Jbid., p. 51.
Ibid..p. iG.
Huxley, E. and l'erliriXI. ,ace and Politicin Iic11ya.pp. 252-zjj.
T,orn;ixL. II.. ThRelitctu~African(1960) ip. 82-84. REJOISDER OF SOUTH AFRICA 213
contract. They will come when we Say come and go when we say go!'
The Africans applauded and screamed with glee. Tom Mboya was
on the stump. He was hustling votes, keynoting a political campaign
eight months before the election date. Hisplatform was crystal-clear:
he promised to submit the Europeans to every indignity and depri-
vation they have visitcd upon the Africans for a century ...
As we drove away 1asked Mboya if he really meant it. He said he
did."
Zt is not surprising tliat over the last three years Kenya has lost nearly
a third of its White population l.
Colin JI. Turnbull, Assistant Curator of African Ethnology at the
-4merican Illuseum of Natural History and a recognized social anthro-
pologist, States:
"\Xrhere two peoplcs founcl themselves to be completely incom-
patible, as did the pastoral Masai and the Kikuyu cultivators, then
they eçtablished separate though neighboring zones. They found a
relatively peaceful çettlement through avoidance, and this enabled
each to retain itç oivn highly distinctive way of life with itsassociated
system of beliefs ancl values 2."
4. The relationships between Airicans and Asians arc also tense.
Retiana Sadikot wrote in April 1963:
"A large-scale trade boycott, enhanced by intimidation, attempt-
ed by Africans against Asians in 1960-1961, has led ta an Exodus of
Asians frorn Kenya. ..
This discriminatory treatment is a bitter blow to the Asian com-
munity ... fwho] have been proiound believers in the social rise of
the Africans and have never looked upon them as future competi-
tors 3."
Louis Lomas reports: "But beneath the politics . .. there is simmering
hatred and bitterness in African-Indian relationships 4." And during
May 1964, it was reported that "Kenya is facing a new exodus of Indians.
Ships from Mombasa to Bombay are booked solidly until the middle of
next year . . ." 5.
5. With regard to the African population, tribal affiliations are still
strong, despite vigorous condemnation by the Government, and inter-
tribal fears and hostilities have poçed serious problems. Political organi-
zation developed on a tribal basis, and A. J. Hughes 6,who in 1963 be-
came Press Liaison Officer of Jomo Kenyatta's mling K.A.N.U. party,
comments that-
". ..tribalism was entrenched as the basis of political organization
and thinking. An uncoordinated plethora of tribal and sub-tribal
parties and groups emerged."
One part- followed another, iintil the centralistic Kenya African
Die Vaderland, G Oct. rgO.+p.3.
The -4lannlsof theAmericair Academy of PotilicaE Social Science, V35.1JU~Y
1964,p. 25.
"Equnl rights for Açians",inNew Africa, Apr. 1963, p. 13.
' Lornax, L. E.. The Reluctant African (r9Go)p,70.
' Rhodesin Herald. Y May ig64.
Hughes, A. J., EasAfvica: ?'BeSearch for Utzity. 123.2r4 SOUTH WEST AFRICd
National Union (K.A.N.U.) was formed in 1960, dominated by the large
Kikuyu and Luo tribes I.
In the same year the Kenya African Democratic Union was formed,
bringing together several groups fearful of Kikuyu and Luo domination,
and emphasizing regionalism, which was, according to Hughes,
". . .no more than the transformation oftribal fears and anirnosities
intoan ideology which could be given constitutional form. K.A.D.U.
proposed the division of Kenya into a number of areas, similar to-
but not entirely corresponding svith-those of the main tribal group-
ings .. .[which]policy gave articulate expression to K.A.D.U.'s very
genuine tribal fears of the Kikuyu and the Luo '".
6. At the Kenya Constitutional Conference, 1962, an attempt was
made to recognize the basic ethnic differences in the country, and to hold
together the centrifuga1 forces by devising a Constitution on regional
lines and granting different groups a measure of regional autonom?. Six
regions were to be delimitated by an independent Boundaries Co~nrnis-
sion. The report of the Regional Boundaries Commission, 1962, abounds
with examples of tribal animosity and fears, e.g.,
''-4combined Kamba delegation was unanimous in saying that the
Kamba people did not wish to be placed in a region with the Kikuyu
or to be associated in the same region as the Masai.
A combined Masai delegaiion was also unanimous in espressing
the wish to be included in a region with peoples other than the
Kamba.
A representative cross section of the Neru people. . expressed
the wish ... in no circumstances to be included in the same region as
the Kikuyu 3,"
The Embu delegations insisted-
". . .that if they were to be açsociated with the Kikuyu in the same
region they would require guarantees that they would be given the
right to determine ownership and control of land in the Embu
District, theright to have an effectivelocal government in the district,
equitable representation in Central and Local Government and a fair
share of developments monies +".
"The Abaluhyawere most emphatic in t'heirdesire to be associated
together in a region separate from the Luo. The Kipsigis left us in no
doubt that their unanimous desire was to be associated in a region
with the Nandi and other Kalenijn tribes; they were equally unani-
mous in not wishing to be left in a region with the Luo "'"
The Somali of the Northem Frontier Districts unanimousl?; objected
against inclusion in any region of Kenya, wishing to join the Somali
Republic 6.The Somali in these districts have been in a constant state of
revolt and the member of the Legislative Council for Northern Province
East isreported to have said that secessionists living in the area were
1 Hughes, A. J., East -.lfviThe Senrch for Unity, pp131-132
Ibid.p. 144; vide alsAfvica~Wwld. Ju!y 1963, p. 7.
Cmnd., ?;o. 1899,p. g.
* Ibid., p14.
Itid.p. 8. REJOISDER OF SOUTH AFHICA z15
prepared to die for their cause l. Also among the Luo fear of the Kikuyu
exists. In August 1962, a Luo meeting attended by 4,000 Luo resolved
that-
"[wlhereas hitherto good relations have existed between the Luo
community and members of the Kikuyu tribe, as is evident in our
association in K.A.N.U., ive as a community have viewed with
great concern the wifiespread intimidation, osthing, secret meetings,
and gun manufacturing by members of the Kikuyu tribe, apparently
aimed at dominating other tribes in Kenya =".
The report of the Regional Boundaries ~ornhiçsion concluded that-
". . .it içclearly established that there is a compelling and sincere
desire on the part of many of the peoples of Kenya to be associated
in a region with some and not with others. That is the truth, and it
could only be by a process of urishful thinking that a contrary conclu-
sion could be reached 3".
7. The deep group loyaltieç in Kenya have resulted in the flaring up
of tribal animosities and bloodshed 4. Revolt in the Northern Frontier
Districts is chronic. The Somalis there boycotted the Kenya elections to
show their unwavering determination to secede from Kenya 5.
K.A.N.U., dedicated to centralism (which is close to Kikuyism) 6,
accepted the regional Constitution in 1962 under pressure. Since coming
into power, and since independence which was achieved in December
1963, the Government has progressively refused to take into considera-
tion the desires of minority groupj to preserve a measure of autonomy.
Prime Minister Kenyatta hinted soon after independence that Kenya
needed to become a one-party State,and that K.A.N.U. would be the
only party '. .4nd within a year after independence Kenya officially
became a one-party State and 1egiçIation was passed to curb regional
autonorny.
8. There can be little doubt that conflicts between ethnic groups have
contributed materially to the development of Kenya towards an authori-
tarian one-party régime, capable of keeping in check the aspirations of
rninority groups for recognition as separate entities only by the imposition
of strong measures.
East Afvica>aStandard. quotcd in the Africa Digest. Oçt.1962,p. 57.
2 The Times. 20Aug. 1962,quoted in Africa Digest.Oct. 1962, pp. zj-j3.
Cmnd., Xo. i8~, p. 5 (para.29).
Vide,e.g.,The Times. i Sep. 1962,quoted in Africa Digest, Oct. 1962,p. 53;
TJteGuardiait, 25 AIay 1963, quoted inAfrica Digest. Aug. 1963,p. II.
5 The Guardian, 25 May 1963. quoted in Africa Digest Aug. 1963. p. I i.
6 Vide ..lfrican World. Jul1963,p. 7.
7 Die Traitsvnler,27 July 1964. Annex VI
r. The generai observation that "[tlhere are notoriously great differen-
ces among the African peoples who were swept into one political entity
by the colonial partition of Africa" l,is nowhere better illustrated than
in Nigeria. In a United Nations publication it was said :
"One of the most striking euamples of diverçity is provided by
Nigeria where,in particular, the Yuruba of the Western Region, the
Ibo of the Eastern Region and Hausa and Fulani of the Northern
Region, are distinctive ethnic groups differing in custom, tradition,
religion and language =."
The groups mentioned are the predominating sections of the po~ulütion;
in actual fact there are not Iess than ten, and possibly 12, main ethnic
groups 3, Themain ethnic groups are distinguished by decided structural,
cultural and religious divergencies 4; for exarnple, the people of the
northern region, which is Moçlem, conservative and under-devetoped
educationally, have little in common with the Negro peoples of the
southerii half of the country Each of the ethnic groups, it haç been çaid,
is a nation by itself, containing many tribes and clans ; there is as rnuch
difference between these main groups as there is between Gerrnans,
English, Russians and Turks, for instance 6. Accordingly, it has been
observed that Nigeria as a whole is an artificial unit and not a nation in
the true sense of the word '.
2. An attempt has been made in Nigeria to recognize and respect the
fundamental differences between the various ethnicgroups in the coun-
try. Thus, the Constitution under which the country gained independence
in 1960, acknowledging the fearsof minorities containedsafeguards pro-
tecting religious and ethnic groups from discrimination while the
Federal type of Constitution 9 was in itself an acceptance of diversity and
pluralism '0.With regard to the Federal Constitution, two prominent
Xigerians have commented as follows:
' Sutton, F.S., "Authority and Authoritarianisrn in the Sew Africa", Journal of
I~aierrtatio~zl flairsSpring 1961, p. I5.
* U.N.L>oc., S'I'/'I'Rl/SIIR. A/I 5/V01. 3, Progress of the Non-Salt-Couerni~zg Terri-
toriesuizder the Chavler (I~GI)p. 18.
Awolowo, O., Path la Nigerian Fveedom (1g47), p. 48; Bretton, L., Powev und
Stabilily in h'igeri(rgGz). pp. 127-128,
'Bretton, l,.. I'owerand Siabilily i9a~Vigeri(1962),pp. 127-128.
' Kimble, G. H. 'l'Tropical Africa. Vol. II (1g6o), p242.
Awolowo, O.. Pnlh taNigevian Freedom (1947)~p. 48.
Hailey, A?z Atrican Sumcy, Revised 1956 (1957). p307; Keuning. J.."Nigeria's
Politieke Problemen", Afràka, Maandblad van het Ajrika-Instituut.Dec. 1962, p. 427.
A cammission appointed in 1957 to inquire into the fears of minorities recom-
mended the insertion of specific safeguarding provisions in the constitution:U.hr.
Doc., ST/TRI!SER. A/~g/Vnl. 3. Progress of the hron-Self-Governing Tcrritorics
under theCharter ,-s613 ' .22.
Vide II,p. gr8 (para. 39).
'O Kivkin. A.. "The Politics of Xation-Biiildin..-Probltms and Preconditions".
Jour>ial ofinte;fralio~tal AgairVol. XVI. So. 2 (19621,p. 139. REJOISDER OF SOUTH XFRICA 217
"Ail these incompatibilities among the various peoples in the
country militate against unification. For one thing they are bound
to slow down progress in certain sections, and on the other hand
they tend to engender unfriendly feelings among the diverse elements
thus forced together ... Those who place these groups under the
same Constitution ignore them at their peril. More so, as it appears
that theçe incompatibilities tend to grow in size as those concerned
become more educated and civiljzed .. .
Experts can propound learned theories as to why people having
different langiiageç and cultural backgrounds are unable to live
together under a dernocratic unitary Constitution. But the empirical
facts of history are enough to guide us. It has been shoivn beyond
al1 doubt that the best constitution for such diverse peoples is a
federal Constitution . ..
"Far from marking the triurnph of 'tribalism', or regional natio-
~ialisrns, the adoption of federal government in this country was a
constructive step totvards a durable society based on a multiplicity
of ethnic groups. Since the ethnic groups cannot be wished away,
wisdom dictates that they be recognized for what they are-the
. raw materials out of which the Nigerian nation has to be fashioned-
and that a constitutional formula be found for reconciling diversi-
ties with overall unity. Ttiis is preciçely what a federal framework
is designed to do . . 2"
3. Nigeria's acknowledgement of the diversity of her peoples in her
. attempt to build a nation has not been without constructive effect. Con-
sidering the vast size of the country and itspopulation, and the extent
of the ethnic diversity, the Nigerian record concerning interna1 stability
appeared for some time to be arnongst the more favourable of the newly
independent States ol Africa. Wowever, evidence has lately been mount-
ing that theactual constitutional arrangements have not gone far enough
in the direction of decentralization inorder to enable Nigeria to escape
"the quickening pace of separatist activities" ', mhich have been manifest
elsewherein Africa. In fact, the group divisions which were instrumental
in bringing about the federal structure have tended to push the three
regions of the country even further apart 4;the divergences amongst the
various groups have been a source of friction, "a negativc force of dis-
equilibriurn and disintegration" $. The task of building a nation and
forging the various groups into a homogeneous community lias thus far
proved incapable of attainment, because, although there are no fuiida-
mental differences of race or colour betkveen the ethnic groups, there are
nevertheless important diversities of culture and religion 6. These have
resulted in the emergence of "tribal particularisms" ',in an increasing
' Awolowo. 0.. Palk /O ~\'zgeriaFreedom (1947).pp.49-30.
Ogunsheyo, A.. "Xigeria'ç 1:'oliticalProspects", quoinBulletinO/ the ..l/vica
Instifufe, Vol. Xo. 13, rSep. r+r, pp. 4-5. froman articlepublished in Ibadan,
the Journal ofthe University College ofIbadan.
Rothchild, D.S.,"The I'oliticof African Separatisni"Jotrriral aInternational
Affairs,Spring 1g6r,p. 18.
Cowan, L.G.. Local Couerntnentin West Africa (rggg). .168.
Bretton. H. L., Power and Stability i,Vzgeria (1962)p.'27.
Hlias,T.O., Gouer~rnzenlnd Politics irAfvica (rg63),p. 04.
Ibid.p,. 60.218 SOUTH WEST AFRICA
awareness of cultural and linguistic identity l;even educated Nigerians
have retained the basic loyalties to their particular communities, pro-
viding the leadership of the local or "tribal" unions l.The desire of each
group to preserve its own cultural, economic and political solidarity has
given rise to tribal animosities 2,to conflict between ethnic groups and to
a government composed oftotally different groups 3.
4.. Group loyalties have resulted in the flaring up of old divisions,
tensionsandfrictionin local authorities such as county councils and muni-
cipalities throughout the country 4. One authority has noted that at
least one county in the Eastern region, which had been formedby
forcibly combining three distinct groups, has "fallen apart" as a result
of tribal and linguistic differences More broadly, the competition for
political power which has arisen between the hitherto quiescent groups
has been organized around tribal ties and sentiments 6; the various
groups support separate political parties 7,tribal feelings being the main
infiuence in determiniag party allegiance 8. According to one authority,
political tribalism has been introduced where only social and relatively
small-scale tribalism had been known before 9. Two of the three major
political parties came into existence partly in response to the :hreat of a
mass party to seize power nationally on behalf of one ethnic group Io.
Each ofthe main parties, in the struggle to gain power at the centre at the
expense of the other parties 11,has become regionally entrenched 12; there
is a tendency for the perpetuation of the rule of the particular groups
which form the majonty in a particular party 13, and the larger groups
are thus bound to dominate the smaller groups 14.The rninority groups
are at a disadvantage tvhen they are forced ta be in the midst of other
peoples who differ frorn them in language, culture and historical back-
ground 15.These minorities are beset with fears of discrimination, op-
pression and even destruction 16.Thus ethnic considerations have become
major sources of conflict 16.
5. The fears of dissatisfied ethnic minoritieç in Nigeria have given rise
to repeated demands for the status of new regions or provinces to be
l Post, K. Ifr. J., The Nigerian Fedeval Eleclion (19631, p. 14.
Elias, T. O., Govevnment and Politics in ilfric(19631,p. 61.
Osinowo, T.. "Essentials af African Unity", New Africa, Apr. rg64, p. g; vide
also Hodgkin, T.. Nntionalism in Cololtfal Africa (1956)p,p. 189-190.
Cowan, L. G., LocalGovernment inWest Africa (195g), pp. 170-171;Carter, G. M.
and Brown, W. O., Transition in Africa (1958), pp. 58-59.
5Carter, G. M. and Brown, W. O., Transition in Africa (rg58),p. 58.
6Hodgkin, T., Nationalism in Colonial Africa (1956). pp. 189-rgo.
7Post, K. W. J.. The Nigevian Fedeval Eleclion (1963), p.13.
aMackenzie, IV. J. RI. and Robinson, K., Fiva Elections in Africa (196o), 95.
Bretton, H. L., "Political Problems of Poly-Ethnic Societiesin lvlrest Africa",
address delivered at the Fiftb Wovld Congress of the InternationalPolitical Science
Association, Paris,26-30 Sep. 1961, p. 5.
Io Bretton, H. L., Power and Slability in Nigeria (1962), p122.
Ibid., p$20.
l2 West Africa, 8 Feb. 1964, p. 141.
'3 Gyaai-Twum, K., "West Africa's l'roçpects for Democratic Rule", Atuica-
Special Report. June 1959. p. 12.
l4 Mackenzie. W. J. M. and Robinson, K., Five Elections in Afvica (1960). p. 484.
l5 Awolowo. O., Palh 10hTigevian Freedom (1947).pp. 53-51
l6 Bretton, H. L.. Power and Stability in Nigeria (1962), pp128-129. REJOISDER OF SOUTH AFRICA 2x9
accorded to their own specialized cultures l,and for the formation of new
States '. There have also been frequent threats of secession 3. Already
these fissiparous tendencies have resulted in the establishment,recently,
of a new, fourth region in Nigeria, known as the Mid-West state 5.The
. creation of the new state within the Federation followed upon a crisis,
during which a state of emergency was imposed in the Western Region,
providing for rule by decree of the Federal Government; and Chief
Awolowo, whose Action Group formed the majority in the Western
Regional Parliament while being a minority in the country as a whole 6,
was put on trial and sentenced for treason 7. These developments have
to a certain extent confirmed the doubts that had been eupressed by some
authorities as to whether stabifity could be maintained in an indepen-
dent Nigeria whether the three regions could be stopped from dis-
integrating under the stresses of their own interna1 antagonisms 9,and
whether the various ethnic groups would stay together longer than
espediency required 9.
6. It is significantthat when the new Mid-\.l'est state \vas created, al1
the political parties in Nigeria not only supported that development, but
in fact encouraged the formation ofstillfurther small states. In July 1963 ,
the New York Times Service reported from Lagos as follows on the
formation of the new region :
"Its creation refiects the intensity oi tribal and regional feeling
that still pervades Nigeria'ç political lif. ..
While moçt African nationalists decry any tendencv to split
Africa into tribalgroups, the creation of the Ilid-West State had the
broad support of al1Nigerian political parties.
Theyreasoned that becausetribal feeling isstillso strongin Nigeria
a tmly national political party cutting across tribal lines isnot yet
possible.
Thus the only way to achieve national unity istoencouragesrnail
tribal slales. IVith each tribe secure in its ow~ area there will be far
more willingness to form truly national unity without fear of any
one group being strong enough to dominate another la." (Italics
added.)
Other observers have also advocated the further partitioning of the
country as a means ofreso1ving'the.-ç oetfleincttse various.ethnic
1Adam, T. R., Govcrnmcnt and Politicsin Africa South of the Sahara(i962),
pp. 108-log.
Pest, K. W. J., The Nigcrian FederalEttclton (1963)p. 13.
Carter,G. 31. and Brown, W. O., Transition in Alrica (1958p. 58; Rothchild,
13.S., "The I'olitics of African Separatism", JouO/aIniernational AoairsSpnng
1961, p.58.
' Hodgkin. T..~Vationalisni in Colonial Afr(1956), pp 189-rgo.
pp. 8-10.ethy. D. I3., "Sigeria Createa New Region". Africa Rsport, Mar.1964.
The Sta~ (AirjcanXews Servjce). 29May 1962; 4 June 1962 and 25 June 1962,
1963-4 Jan.1964, p. 19818, and
rg to %zAug. 1964,ep.o20236.rchives, 28 Dec.
aMackenzie, W. J. H. and Robinson, K., Five Eleclio~ts in Afric(1960).pp.
484-Kimble, C. H. T., Tropical Africa, VolII (rg61). p. 243.
lDAs quoted in The Star,16 July 1963.220 SOUTH WEST AFRICA
groups: thus, there have been serious suggestions that Nigeria should be
split up into 13 autonomous regions ': it has been argued that each group
must be autonomous in regard to its interna1 affairs, and that even as
many as 30 to 40 Regional Wouses of Assembly would not be too many
in the future United States of Nigeria 2;the suggestion is that since the
opposition to the Government is regional, and not political, therr is no
reason to believe that the recognition of separate entities by the creation
of a large number of units with limitcd powers would wcaken the caun-
try 3.
7. Nigeria's attempt at alleviating group frictions by recognizing and
respecting ethnic divisions can hardly be described as a "pandering to
tribal parochialism", the phrase used by Philip Msson '. No-one would
çuggest that the country should be divided into "more than a hundred
linguistic groups" 4. As has been pointed out, the large number of lin-
guistic groups are mostly comprised in the IO or 12 major ethnic groups:
in other words the position witiiin these groups is sirnilar to that obtaining
amongst, e.g., the Ovambo and the Okavango peoples in South West
Airica and there is a widely held view that more States should be es-
tablished witliin the Federation to make provision for the main group.
The presence of members of different groups in the various govern-
mental bodies, which is inevitable under the present arrangement, has
given rise to much tension and friction, as pointed out above 6. Sometimes
this tension has erupted into violence, as in the Tiv Division of North-
Eastern Nigeria. In February 1964 it was reported that riots had broken
out there during which Ir people were killed; later ten members of a
minonty poIitical party were sentenced to various terms of imprison-
ment '. The President of this party blamed the disturbances "on district
and clan heads interfering with local politics" '. On 2 August 1944The
New York Times reported:
"Months of ;ribal clashes in north-eastern Kigeria rnay have cost
as many as 1,000 lives, the police said today.
Bloodçhed increased sharply several months ago, spurred bj.
tribal jealousies and ,political bickering.
The Tivs resentbeingruled by the 1Moslenz Fulaizi tribe from the
Northern Kegion's capital of Kaduna (ltalics added.)
1 Sampson, A.. Common Sense About Africa(~gfk)p,.33.
Awolowo, O., Path 10 NigerianFreedom (1917)p~p. 53-54.
Panikkar. K. M., Revolutionin Africa (ig611pp.17-15.
+ IV,p. 335.
5 Vide II,pp. 323 (para.42) and318(para. 28).
Ibid., and paras3-5, s~pru.
"Sigena's Population Explosion", M'estAfrica, 29Feb. 1964. p.226.
The iVew York Tirnes,2 Aug. 1964, p. 8. Annex VI1
I. The two population grouys, which differ racially and culturally.
viz., the Hutu (85 per cent. of the population in 1956) and the Tutsi
(slightlylessthan 15per cent. ofthe population in 1956) have maintained
their separate identity over a contact period of at least four centuries l.
2. During the late I~~OS, with the introduction of the principie of
suffrage-coming in the place of indirect rule which previously had not
drastically changed the Tutsi-dominated feudal type of society-direct
competition and tension between the groups built up rapidly. Political
parties were formed on a tribal group basis, the Tutsi dominating the
UNAR (Union Nationale du Ruanda) Party, and the Hutu rallying
behind PARMEHUTU (Parti dlEmancipation des Hutus) 2.
3. In 1959 large-scale racial and political violence broke out, when
PARMEHUTU organized a popular uprising against the appointment
of a new Mwami as monarchical ruler. Thousands of refugees fled the
country, including the newly appointed Mwami
4. As a result of electionsheld in 1960 PARMEHUTU was swept into
power, and early in 1961 a politicalcoufi d'étatfollowed when the PAR-
MEHUTU government organized a mass meeting of communal coiin-
cillors and burgomasters which voted Rwanda a Republic, elected a
new provisional National Assembly, and a provisional president '.
5. Elections for a Kational Assembly, under United Nations super-
vision, together with a referendum on the principle of the monarchy, were
held in September 1961 W. idespread terrorism and intimidation accom-
panied the election campaign 5.PARMEHUTU won 80 per cent. of the
vote. Following the election there was a new burst of terrorism and
thousands of Tutsi fled the country 5.Pnor to independence well over
100,ooo Tutsi fled Rwanda. Over 250,000 still remained 6.
6. Tutsi refugees formed a secret terrorist organization, the Inyenzi,
dedicated to secure thereturn of Tutsi refugees and the restoration of the
monarchy in Rwanda '.Incursions into Rwanda by Rwanda refugees
were made during November and December, 1963 s,but were repulsed.
Mass repnsals by Hutu against Tutsi stillliving in the country the?
swept Rwanda. The Hutu population ran amok and thousands of Tutsi
' Rwanda-Urundi. Ceography and Hisfory, Belgian Congo and RuandaiUrundi
Public Relations Office (Brusselsi960),p. 23:vide also Segal, A., ilfussacre in
Rwanda (1964), p. 4.
Segal,op.cit.pp. 7-9.
Ibid.p,.9. Vide also C.A., O. R., Sixteenth SSuppl. XO. 4 (A14818).p.29
(para.6).
Segal,op.cit., pIO.tnlh Sess.. SirppKo. 4 (A/481S), p. 30(paras. 28 and,29);
Ibid,. pII.l.p. IO.
' Ibid.,p. 13.Vide also hhthesun,A., "Massacrein the XIountains", Rand
Daily Mail, i Feb. 1964.
Segal.op.cir.. p13;U.N. lioc. E/3935, p47.222 SOUTH WEST AFRICA
men, women and children were slaughtered l.The exact number killed
will never be known. Segal states that "[tjhe most reliable estimates are
between 10,000 and 14,000 slaughtered" l. Xass reprisais only came to
an end bu mid-January 1964, but arrests and executions of Tutsi con-
tinued =.A further wave of Tutsi refugees fled the country 3.
7. The number of Tutsi remaining in Rwanda is unknown. Segal
estimates that since 1956-
". . . probably upwards of 250,000 have fled the country, including
50,000 during the latest massacres. The remaining rzo,ooo-140,ooo
are not allowed to leave the country since the Rwanda govemment
fears that once out they will be recruited by the Inyenzi 4".
According to the latest Annual Report of the United ATationsHigh
Commissioner for Refugees the number of refugees from Rwanda had
reached a total of 153,000 by March 1964 creating a critical problem 5.
Segal states that the-
"Tutsi rernaining within Rwanda are in an impossible position.
Although still heavily reliant on Tutsi officiais for administration
and education, the Rwanda government has no confidence in their
loyalty. Even under the most stable conditions their prospects for
promotion iii the civil service u.ould be severely limited. As it is they
are branded as traitors and are subject to intimidation by the
Inyenzi for supporting the régime.Only a handful manage to leave
the country secretly .. .4"
The upheavals in Rwanda have brought economic disaster to the coun-
try 6.
Segal concludes that-
"Rwanda is today one of the world's most unfortunate countries,
besodden with tragedy which may erupt again at any time. Thc
country lives in a constant garrison state of military alert, its
economy bas been shattered to the point of near paralysis, and the
standardof living of its population reducedtothe barest of subsistence
levels.Its borders are thronged with thousands of refugees who are
kept alive on the rnost meagre rations only through the grace of
external aid 7."
8. The Adrninistering Authority and the United Nations have found
it impossible to develop a 'oint sense of territorial consciousne~s on the
basis of univerçal adult su Arage of the population viewvedas one. It has
also proved impossible for the two groups to govern joint1 and peace-
fully on such a basis, ina manner fair and acceptable to all.
9. It appears from a recent report 8 that the position of the esiled
Tutsi in East Africa and the Congo, estirnated at more than 130,00o,
' Segal,op.cit., pp. 14-15.
Ibid., p13.
Ibid., p16.
' Ibid., p. 18.
' U.N. Doc. E13935, p. 412,
Scgal,op.cil.p,.ig; vrdealso "Rwnrida: The Tutsis Brood", The Ecojzomist
28 hIar. 1964. pp.I197-1198.
' SegaI,op.cit.p,. 3.
a The Star,i Oct. 1964. REJOIXDER OF SOUTH AFRICA 223
continues to be critical and that they have obstinately refused United
Nations offers to resettle them in Tangan'ika, being engaged ". . . in
planning what they betieve willbe a more successf utempt to regain
their old dominion and restore thcir Mwami" l.
1 The Star,IOct. rgG4. Annex VI11
I. The population of 12,109,000 is not homogeneous, and consists of
partly Arabs, partly Negroes, and partly Nubians of mixed Arab-Negro
blood, with a srnall Foreign element, including some 8,000 Europeans
(1961 estimates) l.
TheArab and Nubian population groups are concentrated in the north,
the Negroes in the south. The population of the Southern Sudan is
approximateljr 3,~OO,OOO T.he ilrabs and Xubians are al1 Moslems. The
hegroes are generally Pagan, but some ha1.e been converted to Chris-
tianity, and some to Islam 2.
z. The fact that these differing population groups found themselves
within the houndaries of a single State was due to their fortuitous union
under the control of the Anglo-Egyptian condominium, under British
administration, since 1899.
3. The Arab and Xegro population groups are rnarkediy different.
J. Cameron says:
"'rhe Sudanese of the north and those of the south not only seem
to be, but consider themselves a wholly distinct people. The Arabic-
speaking ~~uslimçof the north have little affinity with the Negroid
dwellers of the Equatorial south ... between the sophisticates of
Khartoum and the riridnorth, and the black Nilotic people of the
swamps and the forests few things esist in common, ethnically,
linguistically, culturally. The Northerners tend to regard the
southern Kegroes with contempt; the Southemers cherish dark me-
mories of the Arab incursions among them in the days, long re-
mote, of the slave trade 3."
"The most serious internal problem now facing the .. . govern-
ment is the discontent festering in the Sudan's three southern
provinces ... which are ethnically, culturally, and linguistically
more akin to rniddle -4frica than to the Sudan's Moslem, Arabized
nortli =."
4. During the penod of British administration the Milner Mission
recommended in 1920 that-
"[hlaving regard to its vast extent and the varied character of its in-
habitants, the administration of its different parts should be left as
far as possible in the hands of the native authorities, wherever they
exist, iinder British supervision .. .4".
This policy of indirect mie was progressively carried out. The years
during which this policy was applied were relatively lree from internal
upheaval. No population group felt itseli seriously threatened bu domi-
nation ofother groups.
l Whilaker's dli~zanac (1964p. 926.
Kitchen, H. (Ed.).A Haizdbook ofAfrican Rflaivs (1964), p158.
Carneron, J.. The fricanReuoEution(1961), p. 231.
' Mair, L. I'.NufivePoliciesil?Africa(1936). p. 181. 1lEJOlSDER OF SOUTH AFRICA 225
In 1953 an Anglo-Egyptian Agreement guaranteed to the Sudanese
the right to determine their own future. The first Sudanese general
elections were held at the end of 1953 . n x January 1956 the Republic
was proclaimed l.
j. Independence, accordiiig to L. D. Alakuei, brought ". . . an accen-
tuation of the underlying difficulties, narneb, racial, economic and social
gulf betweeri the North and the South" =. And, in the \irords of Cameron,
"[tJroubles descended on the Sudan in full and harassing measure;
riots came and went ; ministers were deposed; crisis followed crisis.
For four years the .. . Sudan wrestled wiih its difficulties, fighting
to impose a sense of national unity and purpose on a divided and
disparate nation through the processes of Parliamentas. democracy.
It was a brave but hopeless effort. The parliamentary groups could
achieve neither a national rnajority nor a system of CO-operation.
In November 1958 . .. [the] tottering parliamentary system was
overthrown . . . A military coup led by General Abboud abolished
Parliament and took over the administration of the country,
claiming that only thus could the integrity of the Sudan as a national
unit be preserved 3."
As a result of the rnilitary coup d'état the Constitution was suspended,
Parliament and political parties being dissolved. A Supreme Council of
the ilrrned Forces and a Council of hlinisters wereset up 4.
6. No more success lias been achieved under the new régime.The basic
differences and attitudes of north versus south have persisted. Indeed.
good relations between the groups have becorne progressively worse
corfelative to atternpts on thepart of the dominant northern Government
to assimilate and acculturize the southerngroups 5Revolt of thesouthern
groups against the pro-northern régimehas been the staple diet of the
Sudan. The full facts are obscured, as the three southern provinces were
declared closed districts, thereby eliminating visitors and effective
obsert-ation.
The southern Kegroes have struggled to secede, alternatively, to
obtain a large rneasure ofautonomy under a federal constitution. Their
demands have been refused and large-scale military operationshave been
conducted, 6,000 northern troops were moved into the southern area in
Alarch 1963. Makuei stated that at the time of writing 600 southerners
had been killed, a considerable number of southern officials, chiefs and
civilians had been arrested, and more than 3j villages (not less than
~,OOO huts) had been razed 6.Large numbers of refugees have fled to
bordering territories. In January 1963 it was reported that there were
Z~,OOO southern Sudaiiese refugecs in Uganda, ro,ooo in the Congo, 7,000
Steinberg,S. H. (Ed.), Strrtesman's Year-Boo(rgss),p. 341, Videako stein-
berg.S. H. (Ed.). Slatesman's Yeur-Book(1963).p.1437.
Alakuei,L. D., "Southern Sudan, a test caseinafro-arab cooperation",NEW
.4frica-4pr. 1gGq. p.II. Vide also Oduho, J. and Deng, IV.,The Pvoblem of the
SoulherrlSudail(1963). pp 1-3and 25-29.
Vameron. J., 7'hA fricarReaolufion(rgGr),pp. 233-234.
Steinberg.S. H. (Ed.),Statestnan's Year-Book (1gG3.. 1437,
"Revolt in the Sudan",Ainerica. 14Dec. 5963,p. 755-
Alarkuei. L. D.. "SoutherSudan, a test case in afro-arab cooperation-vew
Africa.Apr. 1964,p. 12.226 SOUTH WEST AFRICA
in the Central African Republic and 500 in Kenya l. Emergency grants
were made by the United Nations to resettlc refugees '.A secessionist
movement named [NJAnya. [AINya, cornmitted to violence to achieve
self-determination for Negro southerners, came into being and has
carried on terroriçt activities2.Its circulars state, inter dia: "i~'herever
we find a Northerner we shall kill him. .. Death to the Arabs, Freedom
for theSouth" 3.
The southern Sudanese secessionist movement is another instance
where a distinct race wiçhes to escape the oppression of a dominant
majority. Thus the Southern Sudanese Union clairned that in recent
months the Sudanese Government had killed 700 southern Sudanese,
burned 500 villages and had made 2,000 homeless '.The United Nations
High Con~missionerfor Refugees had initiated a ~175,000 programme for
settling 1,200 refugees from southern Sudan 5.lan \lrright, who had spent
sometime in southern Sudan, wrote:
"Even Southerners who are loyal-and there are a lot of theni-
know that a political solution, a recognition of southern separatisrn
even, will be necessary in the end 6."
7. In sum, hlakuei states:
"The core of the southern problem lies in the northern rejection
to the Sudan becoming a multi-racial State.. This is shown by the
northern determination to obliterate African identity by the im-
positionoi the Arabiclanguage, of Islani, and by the subjugation of
the African group economically, politically and sociaHy . . . The
ruthless and indiscriminate maltreatment of southetners by the
military government only crownç an already obvious failure of the
Sudan as an Afro-Arab State 7."
8. A spread of the revolt occurred during October 1964. Serious
noting took place in the northern capital city of Khartoum. There has
been a practically camplete news black-out, but on the radio President
Abboud has stated that he would revive the1956 Constitution and appoint
a commission of enquiry. However, President Abboud was overthrown
by a civilian coup d'état at Khartoum on or about 17 Nol~ember 1964,
shortly after he had dissolved his military junta Subsequently there
were reports from the southern Sudan indicating "that the tempo of
spreading'rebellion there has increased in-spitc of-the militaryrégime's
ruthless efforts to stamp it out", that the "insurrection . . .has a bitter-
ness and brutaBty rerniniscent of the Mau-Mau rebellion in Kenya" and
that it "has pitted African against Arab, reviving the deep racial hatreds
that were engendered aniong the African peopIes of çouthern Sudan a
century ago by the Arab slave trade" 9.
"Secessionist Southern Sudan", Africa 1963, IS Jan. 1963, pp. 6-7.
2 "Sudan:Southern Çtrife",QuartcrlyEco,ioiniReview. June ~964,p. IO.
"Sudan", Africa Digest, VolSI, So. 3, Dcc.igG3,p. 74.
* Daily Telegraph.24hug. 1964.
The Times. 28May 1964.
The Manchester Guardian,28 May 1964.
Makuei, op.cd., p.12.
Vide Africa Instilule Bulletin, D1964,p. 334;"In the Sudan; Democracy",
The Star. Johannesburg, 17Sov. 1964.
Vide report by the New York Times News Service from Khartoum, quoted in
The Star,Johannesburg 23 Nov. 1964. Annex IX
Although Tanganyika gained its independence in 1961 under a
constitutional structiire designed for a two-party or multi-party system,
and had been regarded as the most promising experiment in multi-racial
government, it soon hecame a one-party State in fact l, and it still
remains so. In 1963 President Julius Nyerere declared that Tanganyika
should become a one-party State statutorally 2; that year produced a
crop of deportations of people who voiced criticism of the one-party
Government, and the formation of opposition parties was quashed 3. In
the beginning of 1964 there was a serious mutiny of Tanganyika soldiers,
when the mutineers took over the key points in Dar-es-Salaam. The
mutiny was followed by considerable looting of Asian shops ', 17 people
died and more than IOO were injured 5.Reasons advanced for the mutiny
were dissatisfaction with the presence of British officers, and insufficient
pay 4.Al1European officers were dismissed 5.The mutiny was suppressed
only with the help of British soldiers 6. The Government appointed a
Commission to esamine what kind of one-party systern was most suitable
for Tanganyika; there could be a danger of further measures of repression
against those critical of the Covernment 'jThe Goverriment had already
decided to merge al1 the II trade unions affiliated to the Tanganyika
Federation of Labour into one big union; it appointed al1 the officiais
from top to bottom without anÿ consultation with the members 6.This
was done %.hilean estiniated zootrade union leaders out of a total of more
than jûo civilians were being imprisoned 6.A former High Commissioner
for Tanganyika in London, who resigned his post and returned to
Tanganyika to form an opposition party, was detained witho~it trial 6.
Tribal animosities are still alive. InApril1963, a clash between thousands
of Waarusha and Masai tribesnien was only prevented by firni police
action 7. More recently Tanganyika entered into a political association
with Zanzibar under the name Tanzania. According to ri recent report
from Associated Press, the Native inhabitants of Tanzania would prefer
the European residents to leave the country The report continues:
". .. with Africanisation proceeding, the position of Whites has
become steadily more inseciire. ..Many Britons drive to work in the
morning, and wonder ifthey \vil1have been replaced by an African
by 4.30 p.m. *"
l Carter,G. Ji. (Ed.), -4fricart Oile-PStafcs(1962),p.450.
* Macadam,1. (Ed.), TheA nnual Registe01 World Euents: A ReviewoftheYear
1963 (19641,p. 110.
Ibid., pp110-II?.
The Manchester Guavdian, 2IJan.1964
The Times. 22Jan.rgG4.
COX, Ir, "Tension in Tanganyika", inhTewAfrica, rlpri1964,pp. r2-14.
' The Times,15 Xpr. 1963.
"und Dai& 1il4aiE,rDec. r964. Annex X
TOGO
The former mandated territory ol Togoland under Frencli ad-
ministration was placed under a trusteeship agreement after the Second
World \Var. In 1gj6 the territory became part of the French Union and
universal adultsuffrage rvasintroduced l.In 1960it became anindepend-
ent Republic. By 1961 the Comité de l'Unité Togolaise (CUT) was
elected to al1seats, the nominationsof the opposition Party,the Juvento,
not being allowed to go forward. The former leader of the opposition was
arrested in December 1961 2.Togo thus in effect became a one-party
State. The one-party Government of CUT under President Sylvanus
Olympio ended abruptly in January 1963 when President Olympio was
assassinated and CUT overthrown. A military committee took over and
M. Grunitsky, a former prime minister during the period of Frencli
administration, returned from exile in Dahomey and was appointed
President. The National Assembly was dissolved and the Constitution
abrogated 3.
In April 1963 a plottooverthrow the new Government !vas discovered
and a number of the CUT opposition leaders were arrested'.A new Con-
stitution was agreed upon in &ta?.1963-clections were held on a single
list of candidates for the Assernbl4.
1 Vidu IIpp. 519-520-
2 "The Opposition in Tropical Africa", Bttllelin oftheInternalional Cofzmission
JuristsNo. 14. Oct. 1962p. 5.
Steinberg, S. H(Ed.)Statcsman's Year-Book(1963)p. 1044.
' Kecsing's Contcmporary Archive1to 8 June 1963. p19449. Annex XI
I. The population is heterogeneous, consisting of groupa whicli difier
racially, culturallyand linguistically. ln1958 there were 228,81 A5fricans
(stib-divided in different groiips)46,989 Arabs, 15,334 Indians, and small
niimbers of others l.
2. After the first elections on a common roll were held in 19-5 con-
siderable racial tension between -4rabs and Africans hecame apparent =,
and during the mid-1961 elections serious racial rioting broke out after
the Afro-Shirazi Party (ASP) had appealed to Africans on a racial basiç 3,
68 perçons (practically al1Arabs) were killed and 381 injured 4.
3. On IO Decernber 1963 Zanzibar became independent alter the
United Nations General Asscmbly had requested tlie administering
Power to grant Zanzibar independence ". .. on the basis of universal
adult suffrage"
4. Immediately prior to independence the African-dorninatcd Afro-
Shirazi Party, although polling more thari 50 per cent. of the votes, was
defeated by a coalition between the Arab-dorninated %NP (Zanzibar
Nationalist Party) and ZNPP (Zanzibar and Pemba Pcoplcs Party) 6.
5. African dissatisfaction and racial feeling were so close to the sur-
face ' that just over a month after independence, on 12 January 1964,
the Government was overihi-own in a military coup d'état, which was
African led by John Okello '.The revolution was accompanied by manv
acts of violence, large-scale looting of shops belonging to Arabs and
Asians, and a large ~iumber of persons were killed Okello claimed that
11,99 peop. had died 9.'rhe Sultan, who was tlie constitutional Head of
State, Aed the country, a Republic was proclaimed, and the leader of the
Afro-Shirazi Party installed aç the new President Io.
The former elected governing coalition parties, the ZNP and the ZNPP,
were declared illegal, ail tlieir property was seized. and the Sultan was
banned from Zanzibar for Iife".The revolutionary President :iiinounced
' Zansibnv, Reference Uivisioii, Ccntral Ofice ai Iniormation, London, Oct.
1963. PP. 3-5.
Colonial Ofice Report on Zanzibafor the years 195l~?z1958, p. I. Videalso
.4fricaw DigestJ,uly/Aug.1958.fricans l'art?". Observ21,July 1957; "Zanzibar",
Zanzibar,Reference Division,CentralOmce of Information. London. Oct.1961.
pp. 25-20
' Brifa~~nacaBookof ihe Year,1962,p.551.Hotberg, R., "The Politica1 Outlook
in Zanzibar", Africa Report. Oct~gGi.y. 5.
G.4 ., O.R., SeventeeSess.,SuppI. Sa.17 (-415217)p. 73.
h'eesing'sContemporary Archives7-14 Dec..i963,p. 19778.
"Zanzibar", CommonwealthStrrvey, zr Jan. 1964,pp. 72-73,
a h'eesing's Conlenepor~ry Archives14-21 March 1964,p. 1995r. Sulzberger.
C. L., "Zanzibar 1-Uchind the Clove Curtain", iiTewYork Times, 25 Mar. 1964.
Ibid. This figure is probably exaggerated.
'OCoinmonwealthSurvey. 21Jan. 1964,pp. 72-73.
Kecsing's Confempoviary.4rchives14to zr Mar. 1964,p. 19951.2 3O SOUTH WEST AFRTCA
that Zanzibar was to be a one-party State under the -4fro-Shirazi Party.
Wide powers of detention were decreed l.
6. From statements by the President, hlinisters, and Okello, the nature
of the revolution was unmistakable-it was a racial revolution to put the
Africans in control of the Government which they felt was in the hands
of a racial minority Immediately after the revolution Okello said that
he thought it would be "unlikely" that Arabs, Asians and Europeans
would be allowed to becorne Zanzibari citizens under the new régime 3.
7, Since the coup d'état, and despite the fact that a ban on the entry
reports con-
of press correspondents was imposed by the new régime
cerning the desperate situation of the Arab and Asian minority have
abounded. It was reported on 23 Aprii 1964 that about 1,500 Arabs had
fled the islands under destitute circumstances 5.
The economy of the island is in a chaotic state with the flight 2nd
expulsion of Arab landowners and merchants 6.
The Times Special Correspondent deçcribing the situation after the
1964 revolution estimated that "there could not have been fewer than
500 casualties" andz,500 persons in prison, detention and refugee camps '.
Arab and Asian refugees are leaving the islands under wretched conditions
packed like sardines on dhows The Red Cross International committee
has started a programme to evacuate the Arab minority, as the only
solution to the problem 9.
8. Zanzibar has now been incorporated with Tanganyika to form the
United liepublic of Tanganyika and Zanzibar or Tanzania, under Presi-
dent Nyerere with the Zanzibar leader Abeid Karume as second Vice-
President. On 9 November 1964 it was reported from Nairobi that
"Zanzibar's leftist revolutionary régimehas launched a new campaign
of terror following the discovery of a plot to overthrow President (sic)
Abeid's government" '0.
1Keesing's Co?a/em$oruryAuchlues, 14 to2 IMar. 1964, p.1995 I.
"Zanzibar after the Coup", Afri~a Digest 16 Mar. 1964, p. 141 ;Sulzberger,
C. L., "Zanzibar 1-Behind the Clove Curtain", New York Times, 25 Mar. 1g64.
"Zanzibar-Life Returning to Sormal". Africa South of the Sahara. 23 Jan.
1964, p. 16.
+Keesing's Conlempovary Archives, rq to 21Mar. 1964. p.19952.
5Rand Daily Mail, 23 Apr. 1g6.+;vide aIso Keesing's Contemporavy Archives,
g to 16 May 1964. p.20052.
Rand Daily fifail,23 Apr. 1964. Vide also The Star30 Dec. 1963.
"Zanzibar after the Coup",Africa Digest, 16Mar. 1964,p. 141.
RaradDaily hlazl, 23 Apr. 1964; The Star. 3 June 1964.
Ibid.aq July 1964.
" The Slav,9 Nov. 1964. Annex XII
I. The Federation between Southern Rhodesia, Northern Rhodesia
and Nyasaland came into being on 4 September 1953. The Federation
was conceived as a progressive experiment in multi-racial co-operation,
built on the cornerstone of "partnership" between Black and \mite l.
The Constitution contained in its Prearnble the promise that the erner-
gent nation would "conduce to the security, advancement and ivelfare
of al1. .. inhabitants, and in particular would foster partnership and
CO-operation between [the] inhabitants ..." 2.Thus Sir Roy Welensky,
Federal Prime Iliinister. said: "Our aim is to achieve a non-racial society
in which a man's ability, not the colour of his skin, will count j."
z. As far as participation in government was concerned, the basic
idea was that no differentiation was to be made on a racial orgroup basis.
Participation in governrnent was to be granted to al1 members of the
population on a basis of education, civilization and responsibility alone,
i.e., solely on a basis of individual merit. In the words of John Graunt,
memher of the Federal Parliament, "[tlhe only thing urewant is to have
rule by those capable of ruling, an aristocracy of capability, not of colour
and not of race. .." '.Due to the overwhelming majority of Natives, it
was realized that they would ultimately be in the rnajority as far as
participation in governnient aas concerned. Sir Roy Welensky stated:
"1 believe that the African will eventually dominate the voting, but at
that stage 1hope he will be an educated and civilized person 5." And Sir
AIalcolm Barrow stated: "\Ve accept the fact that Africans must even-
tually govern and we regard it as part of White trusteeship to train them
for that responsibility ... 6" The basicprinciple of the poUcyof partner-
ship was accordingly controlled integration, which, in the sphere of
government, involved the creation of a single political unit, with rights
of suffrage granted to al1 inhabitants, irrespective of race, on reaching
the required standards of civiiization.
3. This idea of controlled and gradua1 evolution was totally unaccept-
able to the Africati Nationalist leaders. The strict voting qualifications
were regarded as a mere subterfuge, and the demand "for one man,one
vote", immediately, was advanced without any hope of compromise '.
4. Thomas M. Franck, an American observer who is decidedly not un-
syrnpathetic towardç the African point of view, comments:
Vide II, p.454 (para.45).
Franck. T. M., Race and Natianalism: The Struggte forPoxver inRhadesia-
Kyasaland (1960),p. 2.
' Diiffy.J., and hlanner. R.A., Africa Spcaks (1961)p. 128.
' Federntion ofRhodesio ahd Nyasalo$id, Debates of the Federal AsscmblSecond
Sess., Second Parliawent,28hfar. to19 July 1960. Vol. r2.Col. 362.
Allighan, G., The WelenskStouy(rg62) p.259; vidsalso Welensky, R., Welcnsky
4000 Du~s.p. 324.
Allighan.op. cit., p. 259.
Vide 11,pp. 454 nrid 469-470, SOUTH WEST AFRICS
"The greatest fear of the radical Congress leaders is that a molti-
racial political party or movement could some day really succeed in
capturing the imagination of the races. They keep these movements
under constant attrtck, for they see them as 'cooling charnbers'
designed to pacify without rectifying, as attempts to rob black
nationaliçrn of its intelligentsia, its leaders and its bankers . .[lhey]
thrive in an atmosphere of racial struggle and social discord ivhich
is also frequently in part of their own rnaking.\Irhen Garfield Todd
announced . . . that he would stake his political career on
broadening the franchise for Africans, he waç heckled and jeered
by Congress agitators.
Thestrategy of Congress radicals is to demonstrate to the rnass of
the Africans that European liberals are ineffectual, that they are
repudiated by their orvn race; that orily Africans can \irrest çon-
cessions from the Whites, and only by 'direct actionf-den~onstra-
tionç, strikeç, riats, threatsof violence.
Towards those Africans who reject this strategy, radical metliods of
persuasion are irequently directed. Boycotts against the shops of
Africans who CO-operatewith Europeans, social ostracism, and even
magic spells are used as nlethods of coercion by Corigress radicals.
Hut-burnings, stonings and other forms of physical violence ... are
also employed l."
It is not surprising that a moderate African Minister of tlie Federal
Cabinet, hlr. C. A. IV. Lewariika, should have stated in 1960: "These
African Nationalists hate multi-racial societies or multi-racial Goverii-
ment. What they want is only a black Government *."
In keeping with the above-mentioned approach on the part of Hlack
nationalist leaders, civil unrest and rioting became commoiiplace. States
of emergency were declared in the three constituent territorieç in 19j9,
and there was large-scale rioting and unrest 3.
5. White support of real molti-racial partnership \\,as in the circum-
stances also fiiltering or lacking. In 1957 an attitude silrve!. was con-
ducted by Thomas Franck which indicated clearly that un~villingiiessto
assimilate and feac were widespread 4.
In tlie face of militant dernandsby estremist Black nationalist leaders,
the position was reached where reaction set in amongst the \Vhite popii-
lation. In Southern Rhodesia, for example, Prime hlinister Garfield *fodd
in 1957 staked his political future on a campaign for tlie extension of
suffrage rights to Africans on lower qualifications than previously 5.
Early in 1958 thece was a revolt in his own party, and he was forced out.
Sir Edgar Whitehead took over thc Prime Ninistership, and Todd re-
formed his old United Rhodesia Party.
In the June 1958 elections Todd's party \vas totally eliminated. 'Che
Dominion Party, under makeshift leadership, on a conservative platform,
' Franck, op.cit.p,p. 256-257.
~ederaiion of Rhodesia and Nyasalarrd, Debates of the Federal AssemblSecond
Sas..Second Parliameni, 28 Mar. ta 19 July 1960, Vol. 12,Col. 887.
vide Welensky, op.cit.pp. 98-99;II.+-II~;r18-119;121-123; 127-rzS; 30s-308:
Franck, O+.cit., pp62 and 263:Allighan, op.cif.pp. 32I-332.
' Vgde Franck, op.cit., pp. 236-247.
Vide para. 3, supra. KEJOISDER OF SOUTH AFRlCA 233
nearly toppled the ruling United Federal Party, dedicated to the develop-
ment of "partnership", from power l.
Franck remarks: "The results of the election came as something of a
sliock even to ille most pessimistic of Khodesian liberals l."
During the next few years Sir Edgar Whitehead, under strenuous
pressure, attempted to speed up the process of integration implied by the
"partnership" idea 2,and predicted that on the 1961 Constitution and
franchise arrangements there would probably be an African majority in
the Legislative Assembly within about 15 years' time 3.
The intransigent attitude of Black nationalist leaders 4, however,
resulted in a considerable hardening of opinion amongst the White
population. The ruling United Federal Party of Sir Edgar IVhitehead was
defeated in the December 1962 elections by the more conservative
Rhodesia Front Party, and since then insistent claims for independence
on the basis of the present Constitutionhave been advanced. The harden-
ingof White opinion is clearly evidenced by the statements of the present
Prime Minister, lan Srnith:
"We believe you can't force integration on people who don't
want it 5."
"You have to make up your mindç whether you are going to
maintain standards or are prepared to compron?ise. 1 Say if you are
prepared to compromise it is the end. 1fwe give inwe have no option
but to get out.
1can tell you, as far as1 am concerned-and I am speakingfor the
Governrnent-we have made up our minds. Neither will we give in,
neither will we get out.
We have to stand firrn. We have to maintain the standards of
civilization we brought here and we have to insistas farâ~ South-
ern Rhodesia is concerned that decisions shall be made by South-
ern Rhodesians 6."
"As far astre are concerned, if anybody thinks they can interfere
in our affairs and tell us how to run our country and how to lower
Our standards to appease outside opinion in the afro-asian bloc,
then 1 say to them that will be the bloody day ?."
And he haç been reportcd on several occasions to have said that the hand-
over of politicalpower to the Africans would not take place in hiç lifetime.
Ithas been commented that the growing pressure to hand over power
to the African nationnlists will be contested by the Rhodesian Whites to
the end, and that after "the throwing overboard of 'partnership' by
both the Africans and the Whiteç" the alternative of a vol un ta^ hand-
over of poiver to the Africans can be dismisscd S.
It is manifest that an impasse has been reached in the attempted
integration of the different population groups in Southern Rhodesia ~nto
a single integrated political unit, Jnstead of bringing the population
' Vide Franck, op.cil.pp. 193-194.
For Constitutionaldcvelopments vide11,pp. 509-510.
Ibed.,p.470,
* Ibid.p,p.469-470.
The Star,17July 1964.
Ibid.,20 July1964.
' IVi8rdhoeRAduerliser8 June 1964.
SurtdayTiines,G Dec. 1964. '234 SOUTH IVEST AFRICA
groups closer together, as had been hoped, the metbod of political devel-
opment advocated by Applicants is now producing the opposite result.
It would appear as if creation of asingl integrated political unit ,nthe
African context, often leads to an eventual choice between only two
alternatives-to dominate, or to be dominated.
6. In the meantirne opposition tothe Federation on thepart of Nyasa-
land and North Rhodesian Black nationalists became extreme. The
Monckton Commission found that "[tlhe dislike of Federation among
Africans in the two Northern territories is widespread ... It is aimost
pathological l". The United Kingdom Government in December 1962
accepted in principle that Nyasaland should be aIIowed to withdraw frorn
the Federation, and on 31 Decernber 1963the Federation was dissolved.
Thiç "partnership" was dead, and with it al1 idea of "showing of
powerW-as was commented by Elspeth Huxley in 1963 and by Patrick
Wall, Conservative British M.P., in January 1964 2.
7. Nyasaland became the independent State of Malawi on 6 July
1964under the Prime Ministership of Dr. Banda. Within a few rnonths
after independence there was a serious revolt in the Cabinet, and sis of
the hlinisters were forced out. The refusal of Dr. Banda to rush Afri-
canization was reported to be a major reason for the revolt 3.Assaults
and intimidation were \videspread, and it was reported that "democratic
rule is being replaced by dictatorial power and political intimidation" 3.
It was further reported:
"Political intimidation is an old practice in Malawi, but it came
into the limelight earlier thismonth when Dr. Banda began to use it
against sorne European reçidents who, ironically, Aad been among
his most enthusiastic supporters before independence 4."
l Report of the Advisory Commission on the Reviews of the Constitution of
Rhodesia andNyasaland, Cmnd. Paper 1148,para. 27.
VideChap.VII, paras. 8-9,infro.
Sunday Times, 15 Nov. 1964.
' Ibid. Videalso Sunday Times, 8Nov. 1964; The Star,II Nov. 1964. AnnexXII1
I. Partition between India and Pakistan came about after a long
period of agitation, rioting and civil unrest.
In alarch 1940, IOO,OOO members of the All-India Muslim League
met in Lahore and passed a resolution which comrnitted them to the
attainment of their own land of Pakistan. Xo constitutional plan for
India would work, they declared, unless those areas in which the Mus-
lims were in a majority, as in the north-western and eastern parts of tlie
country, were grouped into independent states of which the constituent
units would be autonomous and sovereign.
This "Lahore Kesolution", backecl by the majority'of the leaders of
British India's So million Muslims, was an absolute indication that tfiey
would never agree to belong to a frce united India which, because of the
religious diirisions arnong the population, would be predominantly Hindu
in character and governrnent l.
z. Thedemand for the independent State of Pakistan \vas based on the
fact that the Aluslims and Hindus could not successfully live side-bu-side
in a single political organism. Cailard comments:
"With the history of Western Europe in mind, it is easy to main-
tain that ina modern democratic state al1 citizens should be equal
without regard to colour, creed or race. But in Pakistan the history
of more than one generation had emphasjzed the incompatibility of
hfuslim and Hindu 2."
"The two-nation theory, bowever, is essentially a modification of
the 1Vestern political theory of the right of national self-detern~ina-
tion. As a political mo\iement,. the ~oo,ooo,ooo Rluslims of India
asserted their nationhood and demanded an independent state.
Refore 1947 this idea of a state had no specific boundaries. Pakistan
\vas in no sense the product of sentiments of Punjabi or Bengali se-
paratisrn. The 3Iuslim homeIand was an area, any-viable territory,
which could support the majority of true beiievers 3."
3. Al1 efforts were made to keep the country together. In late 1946,
representatives of the Muslim League wcre induced to enter the Interirn
Government, but no true CO-operation followed.
Mellor comrnents hereon :
"This executive union of two parties which had opposed eacli
other for a generation was achieved during fearful and unprece-
dented commlinal riotç which occured in Bengal and Bihar during
theautumn, but it provedratheran illusory step fonvard for the Vice-
roy soon found himself faced with an apparently insoluble dilemma.
Thoiigh the AIuslimLeague had joined the Go\+ernment it refused to
IlleIloA.. IndiasincePnrtition(1951). 111.
Callard, K.,Pakistan : APoliticaSludy (1957). p. 233.
Ibid.p..236.236 SOUTH WEST AFRICA
send its representatives to the Constituent Assembly which ... had
rejected the ideaof Pakistan l."
4. Rioting becarne intense. MeIlor remarks that-
"[tjhe dividing line between non-violent agitation and open violence
in India is indistinct . . . a chance blow from a policeman's stave, a
hurled brick or a particularly vicious epithet can quickly transforrn
the most peaceful meeting into a riot, especially when communal
passions are aroused. Thiç kind of change now took place in the
Punjab 2."
"The riotsspread quickly. Lahore, Amritsar, Alilltan, Rawalpindi
and many other Punjab towns and villages were seriously affected
by pitched battles in which the rival communities fought urith sticks,
stones, knives, swords and firearms. At feast 4,000 people were
killed and much property destroyed by fire 3",
and says that "... the riots had, perhaps, created the first rough frontier
of a new land" 3.
5. The conflict potential was so great that separation was iiievitable.
The Viceroy said in a broadcast :
"For more than a hundred years qoo million of 'ou have lived
together and the country has been administered as a single entity.
This has resulted in unified communications, defence, postal services
and currency; an absence of tariHs and customs barriers; and the
basis for an integrated political econorny. My great hope \vas that
communal differences would not destroy this ... But there can be
no question of coercing any large areas in which one community
has a majonty to live against their will under a Covernment in
whjch another commiinity has a majority. And the only alternative
to coercion is partition 4."
6. The principle of partition was then accepted by al1parties. After a
number of referendums a Boundary Commission's members could not
agree, and the final lines between the two countries were drawn by the
independent Chairman, and came to be known as the Radcliffe award 5.
Both the areas delimited contained substantial religious minorities;
violent rioting followed. Mellor remarks:
"It is known now that altogether some 12,000,ooo people moved
between the two countries; over 6,ooo,ooo tleeing froni India and
~,OOO,OO from Pakistan. The number killed cannot be accurately
estimated but itisunlikely that it was less than 200,000 and it ma?
well have been far more 6."
l:IfeIior, ri., InsirrcePartitio(~gji),p. S.
Ibid., p.I 1.
Ibid., p12.
Ibid., p26.
5 Ibid.p,.38.
Ibid.p. 45. Annex XIV
I. The two groups on the içland are the Greek Cypriots (81 per cent.
of the population, preponderantlp adhering to the Christian faith) and the
Turkish Cypriots (19 percent. of the population,preponderantly adhering
to Islam) l.
2. The differences between the two groups, who have lived together
for centurieswithout extensive intermingling, are concerned mainly with
religion and with conflicting national aspirations. The Greek community
has been inspired by the idea ofenosis, or union with Greece *. The
Turkisli Cj-priots have vehernently opposed this idea, and have propa-
gated separation, or aiternativelp a loose federal tjye of state granting
them a measure of autonomy 3.
3. The 1960 Constitution under which Cyprus became independent
is based on the conception of a.unitary state, to be governed on a partner-
ship basis bv the two communities. The Constitution rigidly divides the
population into the two communities 5, provides for a Greek Cypriot
President 6,a Turkish Cypriot Vice-Prcsident 6,rigid percentages in which
the two groups are to participate in the civil service, the arined forces,
the police force, etc. ', and prescribed rnethodç of separate voting by the
rnembers of each communitj~
4. Due to the basic differences mentioned above, the two groiips have
been unable to assimilate, and tensions vastlv increased during the cam-
paign for independence, reaching fever pitch in December 1963, and
througli the first months of 1964 9. Terrorism has been and remains wide-
spread since 1955 the constitutional systern of government has apparent-
1yproved completely unworkable, and conditions amounting to civil war
have prevailed Io.The Turkish Cypriots occupy a number of enclaves and
certain portions of the large cities, the Greeks the rest ll.Accesç by mem-
bers of the onegroup to an area occupied by the other isdangerous IL,the
ordinary business of govemment has been dismpted 12,thousands are
l Vide Cyprus, A Handbooh on the Island of Aphrodite, issued by the I'ublications
Department of tlie Greck Communal Chamber, Cyprus [1964)p. 7:Kingsliury,R. C.,
Agi Atlas of hliddle Eastern Agairs(19631,p.58.
Cyprt,~, the Eàcts, Central Office of Information, London, p. 3; Spyridakis,
C., .-Brie! History of Cy+vüs, pp.66-67.
Look, z June 1964.p. 37.
+ Vide Tlie Europa Year Book 1963, p. 374.
Ibid. (Articles 2-5 of the Constitution).
Ibid. (Article rofthe Constitution).
' Ibzd., p. 375 (Articles 122-125 an129-132of the Constitutionj.
Ibid. (Articles Gr-r rof the Constitution).
The A $t~ttalRegister of World E~enl1963,pp. 128-129:Report by theSecretavy
Getzeral on the UnitedNations Operations in Cyprus, U.N. Doc. 515959of IO Sep.
1964, paras. 45-87.
'O U.N. Dac. S/gg50, of IOSep. 1964. paras. 45-57.
" Ibid.. paras. 103-105.
l2 Ibid.p.aras. 106-rqoand 145-155.238 SOUTH WEST AFRICA
suffering chaos and misery and many have died l.Tlie United Nations
organized a peace force of more than 6,000 men on the island to bring
an end to military and terrorist operations and bloodshed, but deçpite
itspresence, a solution seems as far away as ever.
The Secretary-General states in hislatest report 3 that-
". . even at its lowest level, the tension in Cyprus is dangerously
high. Between the two communities which make up the local popu-
lation, there is deep-rooted suspicion and mistrust. Each side is
constantly in fear of being attacked by the other."
5. The solution of thiç problem of inability and unwillingness to
assimilate has not yet materialized. Some observers have proposed
separation, others have suggested that the only çatisfactory method
would be to repatriate the Turkiçh Cypriots to Turkey, leaving the island
to the Greek Cypriots +.Only time can tell what the best solution would
be.
l Th8 AirwüaE Rcgiste~O/ IVorld Eue& 1963,p. 129; U.N. Dm. S/5950,paras.
47-48 and87.
Ibid., para. 3.
Ibid.. para46.
' Kelly, E. F.,"Preventing a Holocaust", Cypvus Bulletiiz (7 Ju1964). Annex XV
I. Over the last ten years great numbers of immigrants, mostly non-
\l1hite, have been pouring into Great Uritain. The flow of immigrants
from the older Çommonwealth countries has remained fairly çtatic, but
the stream frorn the newer members grew rapidly until 1962 l,when an
Act was pasçed to control the influx of immigrants 2.It isestimated that
the total net immigration from the Commonwealth between 1946 and
2962 was 659,250, including 263,200 from the West Indies, 150,goo from
India and Pakistan, 20,400 from West Africa and 8,900from East Africa 3.
By the beginning of 1964 there were some 720,000 Commonwealth immi-
grants settled in Britain (excludingchildren born there),of whom roughly
27j,000 were West Indians and zoo,ooo Indians or Pakistanis '.In Sep-
tember 1964 the London Times reported that according to the most
reliable estimates there were I million or nearljfI million coloured people
living in Britain, including children 5.Comnientingon this fact,the news-
paper said:
"Thus Britain today, with a coloured population nearing two per
cent. of the whole, must rank as a pliiral society with a race problem
of its onrn. Particularly is this so because the coloured population
tends to congregate in certain places, and in these manifestations of
colour feelings are increasing because of the creation O/tensions in al1
theimportantsocialareas, particularly housing, health and schools 6."
2. The process of integrating the new immigrants into Britain's society
has given rise to many difficult problems. In the field of housing, for
instance, tlie coloured immigrants have encountered a great deal of
colour prejudice and discrimination against them: as a result they have
found it extremely difficult to obtain accommodation, whether in roomç,
Aats or hotels, or to lease or bu. houses, irrespective of their social sta-
tus 7; in one suburb of London the White residentç' association entered
into an agreement with a local estate agent to prevent coloured people
lCommenlury from Britain: lVhy Britain is Iiitroducing Imlnigralion Hctles,
issued by the U.K. Information Services in Johannesburg on 3 90v. 1961.
Vide,para. 5,infra.
Deakin, N. (Assistant Director ofthe Survey of Race Relations in Rritain being
undertaken by the Institute of Race Relations), "Hesidential Segregation in Britain:
A Comparative Note", in Race, Vol. VI, No.1,July 1964, at p. 19.
* Ibid., at p.18.
The Times, 17 Sep. 1964.
Ibid. (Italics added.)
Coloüred Immigr~nts ilz Brilaiir. Ari Investigatiocarried out bq' theJnstitute
of Race Relations, by J. A. G. Griffith, Judith Henderson, 3largaret Usborne.
Donald JYood, at p. 21; "Recent Research on Racial Relations: Rritain", bj'An-
thony H. Richmond, in ItiternalionalSocial ScienceBulletinVol. S, 195s. Part 1, at
P. 363; "ll'henl'our Face isthe Wrong Colour". in 20thCenltrry. Vol172. Ko. ior7,
Sp~ing 1963, at pp. 38-39; "Race Trouble in Birmingham.England. ToQ", inU.5.
iLTewsand WorZdReport, Vol. LVI, So. 11,23 Mar. 1964, at pu.103 and IO+ *4O SOUTH IVEST AFRICA
from buying or renting homes in the district 1;sometimes, when coloured
people move into a nejghboirrhood, many IVhite residents move out 2.
In employment, too, coloured people have encountered racial discrimina-
tion: the- esperience difficulty in finding jobs at anything escept menial
labour, regardless of their qualifications j;they have met with hostility
from White workers '; in some areas a quota systern appears to be in
operatioii, restricting coloured empioyees to a certain percentage of the
total number of employees 5, and some employers refuse to ernploy a
mixed labour force 6.Socially, Negroeç in general occupy the lowest rating
in the scale of social distance of different types of immigrant '.
3. According to an Xmerican report, the coloured immigrants of
Birminghnrn in England (75,00 o0t of a total of about I million) are
running into colour prejudice almost everywhere that they corne into
contact with Whites: a survey revealed "a picture of racial antagonism
and discrimination familiar to many U.S. cities" 8.The London Times
recently publislied an article titled "Intense Passions over Colour", in
which the following con-iments appeared:
"The leaders of opinioii in ljritain are generally unfamiliar witli
the p~acticuEawkwardnesses which rise where digerent cullures are
thrown togelherin cornpetitionfor the wecessary things of life ... the
sudden impact of large numbers of coloured workers on inland
towns unused to them has in many cases prodztcedhostility, leuding
even 071occasiol~ toziiolenceg."
4. The Conservative Government did not feel that legislation would
solve the problem of racial discrimination '0;a considerable and respect-
able body of opinion believes that social and personal attitudes to colour-
ed perçons and the discrimination which floms from them are not amen-
able to legal conîrol or ought not tobecontroiled by law, inter dia,becauçe
legislaiive and administrative intervention (as oyposed to education)
would, far from reducing discrimination, tend to increase it by causing
further resentment and creating more publicity ". In the recent Rritiçh
election, the colour problem in Rritain was not overtly a political issue;
but the London Times commented that covertly, it was one of the feur
issues, possibly the only issue, which was really capable of arousing deep-
seated political passions of old-fashioned inîensity 12,and it is generally
accepted to have played a role in the results. Thus onedefeated candidate,
in esplaining his lack of success, said:
"1 am afraid my friends overçeas will fi~idthe answer disturbing.
--
Daily Teleg*aph. 30 June 19Gq; The Daily Herald, ~y Junc t964; The .Stlnday
Tintes.18 Aug. 1963.
2 U.S. News and WovlllReport, loc.cil.at p. 103.
3 Ibid.,at p. 104.
Iniemationril Social Science Bulletiloc. cit,t p.361.
' Coloured Immigrants in Brifain, op. cit.atpp. 30 and 145.
The Baily Herald, I May 1963; DaiZy Telegraph, 31 May 1963.
' Coloured Immigrants in Rritain, op. cit.atp. roS.
U.S. ~Vews and lVorld Report.pp. 102-103.
' The Times. 17 Sep 1964,Racial issues have Rared in citics such as Bristol.
Uoncaster. \Valsali, BrrrdfirrBolton and lVarwick, and there havebeen sporüdic
outbursts of violence in London: US. News and World Repo~t. ioc.cit.. p10).
IDColoeired finmigrrrnts iBritain,op. cit.. at 174.
'1 Ibid.. at p. 173.
l2Th8 Times. r7Sep. 1964. REJOISDER OF SOUTH AFNICA 241
I was deieated because the electorate identified me with the 'col-
oured peoples'. I was rejected as a 'nigger-lover' '."
And a conimentator wrote recently :
"Coloured immigration and the racial pi'oblems it involves became
General Election issues for the first tirnethis year. It is unlikely to
be the last time *."
5. At the time when the British Act to control immigration \%?a seing
introduced, the United Kingdom Information Services in Johannesburg
issued acomment on the measurc which contained the following passages:
"The heavy influx has already led to some acute local problems
in various parts of Britain. For instance, migrants have tended to
concentrate in certain districts in London and in industrial areas
elsewhere in the country; in spite O/ the slrong racial tolerance lhat
is the trait of Brilain, strains coztldeasily develop into clashes between
immigrants and llteZocak fiopz~lation.
The proposed legislation, while certainly not designed to discrimi-
nnte on grounds of race, will in practice maiiily affect immigrants
from the newer Commonwealth countries because it is the iiicrease
in the number of these immigrants which has led Her Majcsty's
Government to take this action.
Taking everything into consideration it became obvious to Her
hiajesty's Government that some form of control was essential,
both to redtccethe risk of a social and economic slrain inherent in the
existenceoftrnassimidutedcommi~nities and toprovide itselfwith powers
to regablutethe flow of immigrant labour as future ecotiomicconditions
might vequire 3" (Italicsadded.)
Despite a reduction in the numbers of immigrants entering Britain as a
result of the application of the -4ct, there have recentlv been numerous
demands for further restrictions on immigrants '.
l The f'ribtrne, 2Oct. 1964.
* Sherman, A., "Inimigrationafter Srnethwick", DailyTelegraph, 28Oct. 1964.
Cornmenlary jrom Rrilain, op.cal.footnotc1.p. 270,supra.
' The Suirday Times, 18 Aug. 1963. CHAPTER iV
RESPONDENT'SPOLICIES: POST-WAR ADJUSTMENTS
I. Respondent dernonstrated in the aioregoing Chapter tliat the
results of applying the "norm" of universal adult franchise in a cen-
tralized administration have often been calamitous, or at least un-
desirable, particularly where there existed well-defined ethnic differences
within the population of the State concernecl. 'The existence of such
differences in South West Africa has presented Kespondent also with
intractable problems in framing its policy, In the Counter-JIemarial
Kespondent indicated the difficulties that must be faced in complping
under present day circumstances with the obligations of the sacred trust.
Rasically the problem concerns methods of enabling the ultimate esercise
of self-determination by the members of certain groups without at the
same time in effect depriving the mernbers of other groups permanently
of the self-same right. In South Africa itself Respondent endeavours to
solve tliis problem by a policy of separate devetopment, which is a culrni-
nation of policies of segregation or apartheid deeply rooted in South
African history 2.Ttie purpose of the policy of sepnrate development is to
eliminate al1forms of racial friction by the creation of separate homelands
for the various indigenous groups, in which.they will be able to deveIop to
their full capacities and exercise complete self-determination 3.
Hal-ing regard to the specific problem of the future of South \Vest
Africa and its peoples, Kespondent, as has been noted 4,could by may of
solution see no alternative to an approach invoiving similar objectives
and principles to those of the South African policy of separate develop-
ment. For this reason, and also to accelerate devetopments in all spheres.
Respondent appointed the Odendaal Commission, the composition and
terms of reierence of which are set forth in the Counter-hfemorial 5.The
report of the Commission has confirmed Respondent's view that separate
development lias indeed represented the only general trend of policy
which can provide adequateljr for the needs, the accelerated advancement
and the ultirnatc self-realization of al1 the iiihabitnnts of South West
Africa 6.
For reasons set out in the Counter-Mernorial'. Rcspondent has not yet
taken a decision on certain recommendations of the Commission, although
the report was accepted in broad principle. Respondent has made it clear,
however, that such acceptance-
". .. inter aliu, involves agreement with the Commission's finding
that the objective of self-determination for the various population
groups will, in the circumstances prevailing in tlie Territor??, not be
II, pl'458-460.
"(id.., pp. 466-472..
Ibiil.. p47'-.+7O
Ibid..pp. 476-477.
VideR.P. So. 1211964
'IV, pp. 2 13-21fi. REJOI?:DER OF SOUTH AFRICA 243
promoted by the establishment of a single multiracial central
authority in mhich the whole population couid potentially be re-
presented, but in which sorne groups wouId in fact dominate
others. .. . The Government aIso endorseç the view that it should be
the aim, as far as practicable, to dearelop for each population gioup
its own Homeland, in which it can attain self-determination and
self-realizationl."
J3y way of illustration of the development possibilities inherent in the
poticy of çeparate development, Respondent also gave a brief survey in
the Counter-Memorial of certain of the fruits of that policy in South
Africa '.
2. 'Thesystematic explanation in the Counter-Xernorial of the back-
ground content, implications and results of tlic policy of separate devetop-
rneiit as summarized above, did not elicit any comparably systematic or
comprehensive reply frorn Applicants. On tlie contrary, Applicants in the
Reply largely ignore Respondent'ç esposition, but nevertheless proceed
to present assertions in conflict therewith, without, however, attempting
to sliotr ~hy their assertions are be preferred toRespondent'sreaçoning.
It will be best, therefore, to deal mith Applicants' argument in the Reply
with reference to the various points (isolated though they are) on which
their averments and contentions meet, or conflict with, Respondent's
espositions.
3. The firstand fundamental, issue between the Parties relates to tiie
method whereby political advancement of the inhabitants of the Terri-
tory jsto be secured. Respondent was at painsin the Counter-Mernorial to
dernonstrate that the only realistic alternative to separate developrnerit
was domination of the whole Territory by majority Native groups (or,
possibly, by a despotic régimederived from them). Respondent empha-
sized particularly that there was no middle course-al1 espedients and
manipulationsintended to achieve such a course really being just slightly
more estended ways of arrivjng at rnajority rule by Natives 3. The
correctness of this assessment not only has been borne out by
furtlier events in Africa but is confirmed by the attitude adopted
by Applicantç in the Reply. They urge, without any qualification
abolition of al1differentiation between groupst, reatment of the whole
poprilation as a unit, and universal adult suffrage 5-cIaims which have
atso been pressed by majority groups nt the United Nations in recent
years.
4. The implications of Applicants' attitude are of great importance.
A poli7 or systern of government carinot be properly evaluated by
tveighing it against theoretical standards of perfection, and, if found to
have some adverse consequenceç iri some respects orunder some circum-
stances for some people, be condemned as a policy which does not pro-
rnote well-being and progress to the utmost. This applies particularly to
. the policy of separate development, whicli was designed to strike a
balance between estremely complicated humaii interests and needs, and
therefore cannot possibly be espected to serve the advantage, short-term
'IV, p. zr3.
' 11.pp. 477-433.
' Fide Chap. III,supra.473 (para.27).
1-ideIV,p. 441.244 SOUTH \VEST AFRICA
and long-term, of al1 perçons at al1 times and under al1 circumstances.
The rnere fact, therefore, that it may have some disadi-antages, in
particular respects, cannot serve to condemn it as violative of Article 2,
paragraph 2, of the Mandate. For a proper evaluation of its merits, it
must be weighed against possible alternatives. And, as noted above, the
only real alternative, and the one suggested by Applicants, is atternpted
integration, which rnust inevitably lead to domination by a iiiajority
Xative group or groups, or a dictatorial clique derived from them. Clearly,
this alternative would also have unavoidable disadvantages, i1.iaddition
to such advantages as it might have. Therefore, anyone attempting to
choose, on merit, a policy best calculated to promote to the utmost. can
do so only aitcr placing in the scales al1 the respective advantages and
disadvantages of each of the only two real alternatives.
5. At no stage in their pleadings do Applicants approach the funda-
mental issues in this case in the manner indicated in the preceding para-
graph. They never attempt any serious assessment of the advantages and
disadvantages of the policy advocated by them: they virtually content
themselves with the fact that United Nations organs have advocated
such approach in regard to South West Africa and other territorics. For
the rest, they concentrate on pointing out the disadvantages, real and
irnaginary, of Respondent's policy of separate development, or itsappli-
cation. Their aUegations in this regard are of two kinds. Some arc directed
toyards showing that separate development is an intentionaliy oppressive
polrcy. Others, however, faIl short of this extreme, and are advanced
merely in order to show that separate development has adverse effects in
certain respects. Evidence of the latter type can clearly not assist Appli-
cants. Even in an evaluation purely on merit, the existence of disadvan-
tages can have no material significance-the- have, as shown above, to
be brought into account in the total picture. Rut the matter does not
end there. As has been shown, it isnot the function of this Court to found
its decision on an evaluation purely on merit, but on the basis whetlier a
Mandatory which makes such an evaluation, can bona fide,in the esercise
of its discretion, corne tothe conclusion that separate development is the
policy best calculated to prornote well-being and progress to the utmost.'.
It is patent that, in such an enquiry, the rnere demonstratiori of di!-
advantages or defects in the policy chosen by the Mandatory, cannot 111
itself justify condemnation of such policy as being violative of the
Mandatory's obligation.
6. When considering Applicants' detaiIed points of criticism, the Court
should, it is respectfully submitted,bear in mind the above considerstions,
the cogency of which is increased in the preçent case by the fact thnt
Applicants do not scriously attcmpt to meet Respondent's case regarding
the advantages of separate development as compared witli attempted
integration as a possible policy for South West Africa. These advantages
were discussed in the Counter-Mernorial2 and may be surnmnrizecl as
follows:
(a) Separate development is not a policy of domination, but the very
antithesis thereof-it contemplates evolutionary termination of
Vidr Part III,sec.C, para.jg,supra.
11,pp. 466-473. KEJOIXUER OF SOUTH .4FRICA 245
guardianship in a manner calculated to lead to peaceful CO-existence.
Attempted integration, on the other hand, must, in the circumstance
prevailing in South ik'est Africa,inevitably lead, at least, to domina-
tion of soine groups by others.
(b) The aim of seIxirate development is justice for all, not on1 for
some. It seeks to avoid a situation where the exercise of selfB eter-
mination by some of the inhabitants would involve the denial of
self-determination to others.
(E) more developed groups,eeks ivhich are at present responsible for the
economic progress and high standards of administration and
prosperity in the Territory, may be swamped aiid probably forced
out of the Territory by much less advanced groups with entirely
different values and outlooks.
(d) 3loreover, scparate development would not involve, as attempted
integration would, the abdication of the sacred trust regarding the
least developed groups, which would under the latter policy be
left at the mcrcy of a new rnajority government with competing
interests and possible hostile inclinationsor intentions, as was the
position in the past.
(e) Separate development avoids the deleterious results of ignoring
etliriic clifferences, loyalties and reactions which manifest themselrres
str~ngl)~ when orle people feels its existence or basic interests
threatened by another. Such results,as noted above l,have often
jncluded tension, unrest, hostilities and bloodshed, and, in some
cases, the imposition of ruthless dictatorial rule in order to suppress
the tensions in question.
(f) Avoidance of tension and group reactions of self-preservation
is securcd by separate development not only in the political sphere,
but also in the econornic life of the country. This policy provides
parallel,. protectedspheres of economic intereçt for the various
groups, in which their mernbers can advance without constituting
or being regarded as a threat to other groups, as compared with
well-known forms of discrimination and resistance almost in-
variably encountered where integration between differing groups
is sought to be attained against the wishes of one or more of such
groups.
(g) Separate development renders possible constructive CO-operation
between White and non-White groups, on a basis of equality, to
their mutual benefit-in contrast witli the fate which has befallen
\\!hite minorities, in other African countries handcd over to Native
rule-to the detriment ofall.
(h) Sepnrate development renders possible tlie achievement of self-
determination by various groups at different points of time. This
implication avoids unnecessary delay in the attainment of self-
determination by more advanced groups merely because of lack of
advancement ancl maturity on the part of 0th groups. Conversely,
it involves for the latter groups the safeguard of retention by
Respondent of the sacred trust obligations tosvssds them even after
l Vide Chap. IIIsupra.246 SOUTH WEST AFRICA
other groups may have chosen independence in the esercise of their
right of self-determination.
(i) Finally, separate development leaves to the free will of the groups
concerned the ultimate. decision whether, and in what forrn and to
what extent, they will link up or CO-operatewith otherç, inter se,
politically, economically and otherwise-as opposed to forcing
upon them a pre-determined systern whether unitary or federal,
which some may feel to constitute a threat to their existence,
interests or identity.
In short, separate development is intended and calculated,
negatively, to avoid the human tragedieç which have occurred,
and are occurring, in African territories such as the Congo, the
Sudan, Rwanda l, and others, as well as in the systems of ruthless
dictatorship found necessary in so many other territories with a
view to maintaining even a semblance of order '.Positively, separate
development envisages the establishment of a system of peaceful
and friendly CO-existence,based on mutual respect for one another's
identity, culture, right to existence and human dignity, coupled
with fruitful CO-operationin matters of common concern. Attempted
integration, on the other hand, involves inevitable injustice to mi-
nority groups-the highest and the least developed otles-inevitable
retrogression in standards of economy and administration, and a
very high degree of probability ofa repetition of the hurnan tragedies
of other territories, or ruthless dictatorial rule, or both.
7- Naturally the advantages of separate development, as outliiied
above, can only be obtained at a price. Boundary lines have to be dranrn,
politically, territorially, and in the economic sphere. Unpopular control
measures require to be maintained during the period of evolutionary
transition towards peaceful attainment of the ideals. In al1such regula-
tory processes individual interests sometimes have to be abated for the
benefit of the larger cause of the whole community, and whole commu-
nities may have to pay some price for an overriding advantage. Such
contributions and sacrifices rvould, hoivever, inthe further appljcation of
the policy of separatedevelopment insouth West Africa. not be demanded
only of some groups, to the exclusion of others. Aswill be demonstrated in
the more detailed treatment below, members of al1 groups would be
affected by reciprocal restrictions on politicaand ecoiiornic opportunities
and other facilities in the homelands of other groups. Transitional steps,
e.g.,moving to a new home, would affect at least some members of al1
the groups. Specificallyas regards the Whitegroup, alleged by Applicants
to be specially favoured, it will be noted, e.g., that not only would a large
number of them have to give up farms owned and developed b>-them.
but the group as a whole would, through the public revenues, have to
make very substantial economic contributions to the accelerated and
large-scale development of the non-\fThite homelands and the upliftment
of the non-iVhite peopleç.
That some meinbers of the non-IVhite peoples would also be adversels
affected in some respects, or would have to make special contributions or
sacrifices, cannot be denied. 13utin Respondent's view the extent thereof
1s very minor as compared with the over-al1 benefits involved for their
1 Vide Chap. IIIsufiva.respective peoples. and indeed foraH the inhabitants of the Territory, asa
whole. This aspect is further considered in the next Chapter, where
various points of attack and criticism advanced by Applicants against the
policy of separate development are dealt with against the background of
what has been stated above. These concern both Respondent's motives
regardinp the policy, and alleged aspects of adverse effects '.
Vide para.5, supra. CHAPTER V
RESPONDENT'SGENERALPOLICY : ATTACKS THEREON BY
APPLICANTS
A. The Charge of MalaFides as now Formulated
I. For convenience, Respondent here repeats the basic charge wliich
Applicants now formulate, and which Kespondent has demonstrated l is
clearly still based on an allegation of bad faith on its part. The charge
reads as follows :
". .. Kespondent's policy and practice . .. is (sic)directed toward the
yrimary end of assuring an adequate 'Native' labour supply in the
Territory, particularly in its 'White' Police Zone (cornprisjng more
than seventy per cent of the 'Territory), subject always to the
condition that, in the wocdç of Respondent's Prime hlinister, 'There
is no place for hirn [Le., the I3antu] in the European community
above the level of certain forms oflabour' 2".
This statement is introduced by the words "as will be shown", and is
followed by a number of unçubstantiated assertions regarding each of the
aspects of "educational apa~theid" 2,"economic afiartheid"*, "political
apartheid" 3, and "policies . . . in respect of rights of security of the
person, residence and movement" +. As noted $, these assertions lead up
to the following conclusion: "In çum, under apartheid. the accident of
birth imposes a mandatory lifse entence to discrimination, repression and
humiliation +."
The question for determination in the present Chapter is in how far
the above charge, assertions and conctusion are supported by anything
contained in the discussion of general principles in Chapter IV R ~f the
KepIy. As Respondent has already indicated 6, consideration ~111b.e
givcn inlater sectionsto Applicants' specificchargesrelating to education,
political rights, the economic aspect, etc.. and it is consequently un-
Iiecessary at this stage to deal witli the general assertions made by Appli-
cants inthe present context with reference to these aspects.
2. Before proceeding to consideration of more detailed criticisrns of its
policies, Kespondent proposes to deal generally with the three crucial
aspects of the charge, viz.,that-
(a) the "primary end" of Respondent's policy is that of "assuring an
adequate 'Native' labour supply . . . in its 'White' Police Zone";
fb) the " 'iirhite' Police Zone" comprises "more than 70 per cent. of the
Territory" ;
(c) Kespondent's policp envisages that there will he "no place for him
' Vide Clinp. 1,para.2,supva; sec. A, paras2-10, supra; Part C, paras. 32-31>,
supra.
*IV, 1)272.
' rbdd.. 1,273.
+ ibid. p. 274.
Vide Chap. 1,para. 2. sîrpua.
Ibid.. para.I,supra. REJOISDBR OF SOUTH AFRlCA 249
[Le., the Uantu] in the European community above the level of
certain forms of labour".
As will be shown, the contentions stated in (a) and (b) are totally
untrue, and the quotation referred to in (c) is cited out of context,
creating a wrong impression. Moreover, the whole charge obviously
ignores altogether the Odendaal Commission report, and Respondent's
reaction thereto.
3. As regards para. 2 (a): Not ajot of evidence is offered in the whole
of Chapter IV B in support of Applicants' contention in this regard. In
particular, they rnake no attempt to indicate how this assertion can be
reconciled with the recommendations of the Odendaal Commission re-
garding the extension and intensive development of homelands. It is
consequently impossible for Respondent to deal with this accusation,
Save to Say that it is unsubstantiated and unwarranted.
4. As regards para. 2 (6): By referring to the " 'White' Police Zone
(comprising more than 70 per cent. of the Territory)" ',Applicants
seek to convey the impression that an area comprising 70 per cent. of tlie
Territory has been set aside or reserved by Respondent for occupation by
Whites. Elsewhere in the Reply they refer to "the 70 per cent. of the
Territory set aside as the 'real home' of the 'European' inhabitants" 2,
and to the "pre-emption of 70 per cent. of the Territory for a srnail
minority of the population" 3.
Applicants do not, however, quote any source for the statement that
70 percent. ofthe Territory has been pre-empted or set aside for members
of the White group. Thestatement is not supported bp the figures given
by Philip Mason in Annex I to the Reply 4; Maçon apparently assumes
that the whole area of the Police Zone has been set aside for the White
group. Thisassumption, wfiich presumably also formc the basis of Appli-
cants' above-quoted assertion, is quite clearly incorrect. Witliin the Police
Zone there are a number of reserves occupied by non-Whites; there are
large tracts of land which have been set aside as Diamond Areas, to which
access is forbidden to everyone Save those concerned with the diamond
industry ; there arc game reserves and the Namib desert; and there are
large areas of unalienated state lands which have not yet been allocated
for occupation by any population group.
The allegation that 70 per cent. of the'~erritor~ has been set aside for
European occupation is in fact untrue; so is the statement bp blason '
that after acceptance of the recommendations of the Odendaal Com-
mission the division of land in the Territory would leave five-eighths
thereof to the Whites, The true position is that, when the Odendaal
Commission made its recommendations, only 47.9 2 er cent. of the land
in the Territory was owned or leased by members of the White group G.
Should effect be given to the Commission's recornmendations, a White
area u~illbe eçtablished in the Territory, the extent ofwhich \vil! be still
l IV. p.272.
Ibid., pp466-467.
Ibid. .. 458. Vidin this regard also 405 and p.460, footnote 3.
Ibid.. p. 336.
Brade up offarms (47.34 per cent,) aland in toivns and township(0.j8 per
cent.).
6 Vide sec.H, Chap. III,para.27,infra (table).250 SOUTH N'EST AFRICA
less than the percentage of 47.92 already mentioned, since a total of
3,406,181 hectares of land presently otvned or leased by IVhites are ta be
added to the areas of the non-White homelands. According to those
recommendations the extent of the various areas comprising the Terri-
tory will be l:
White arca Farms ............. 43.22 per cent.
Towns and townships ...... 0.58 per cent.
Natives reserves .............. 40.07 per cent.
Diamond areas, game reserves, and unalienated
state lands ............... 13.55per cent.
Farms owned by non-Whites ........ 2.58 per cent.
5. -4s regards $ara. 2 (cl:Applicants' quotation of Dr. Verwoerd as
saping "there is no place for him [Le., the Bantu! in the European com-
munity above thelevelof certain forms of labour" isapt to be misleading.
It formed part of a speech on Bantu education, which is dealt with more
fully below 2. In the first place, it is to be noted, Dr. Verwoerd indicated
clearly that in their homelands the Bantu would be enabled to reach the
highest mngs of the ladder. Indeed, he espresçly stated that one of the
aims of Uantu education would be to provide training for ". ..those who
would develop to the, higher professions by means of which they will be
able to serve their awn community" 2.
Not only in tlie homelnnds, but also in the Native urban areas within
the Police Zone. Respondent's policy has bcen to encourage Natives to
rise above the level of labourers, and to assist Native tradesmen and pro-
fessional men 3.
But the espression "certain forms of labour" may be rnisleading even
in relation tothe European economp proper. As willbe showri below the
levels of ernployment which Natives have attained in South \jrest Africa
are by no means confined to the unskilled categories, as may be suggested
by the context in which Applicants quote the above phrase.
B. Certain Facts Said To Be "Decisive and Undisputed"
6. Applicants say:
"The decisivelu relevant facts concerning Respondent's policies
and objectives, relied upon by Applicants in support of their Sub-
missions witli'regard to Article 2, paragraph z, of the Mandate, are
undisputed 4."
Respondent has denionstrated that thiç contention iscorrect only in
so far as it relates to that part of Applicants' case which is based upon
the alleged "norm of non-discrimination or non-separation" 5,inasmuch
as there is no dispute about the fact that Kespondent'~ poljcy differen;
tiates on the basis of mernbership of a group. As regards Applicants
further charge (which is apparently advanced in the alternative, although
Applicants do not expresslÿ sa- so) that Respondent's policy is a deli-
berately oppressive one, the above staternent is. of course, completely
l Vide secFI. Chap. III. para.27, infra(taiile).
Videsec.G, Chap. II, para. 17infra.
Videsec.H, Chap. 1I, para. 6. infra.
'IVidesec.H, Videsec. A,para. 8,szrpvn. REJOINDER OF SOUTH AFRICA
251
wrong. Thelatterpart oi Applicants' case is based on factsand inferences
which are strenuously contested, as witness the bulk of the pleadings in
these proceedings.
7. Despite what was said in the preceding paragraph, Applicants
appear to contend that, even in regard to their charge that the policy
of separate development is an intentionally oppressive one, the crucial
facts are not disputed. In this connection they rely on "Respondent's
own formulations of that policy, as set out in excerpts drawn . ..from the
Counter-Mernorial . .. as well as from public statements of Respondent's
highest officials" l,and on "Respondent's measures for implementation
of its policy" 1, the existence and nature of which are. according to
Applicants, "undisputed as facts" 1.The "measures for implementation"
are dealt with separately by Applicants ',and Respondent will reply
thereto at the appropriate juncture 3.The treatment in the succeeding
paragraphs will accordingly be restricted to the formulations of policy
relied upon by Applicants.
8. Although Applicants profess to have "endeavored to avoid quo-
tation out of context or other distortion of Respondent's intended
signification" ', their actions do not appear to rneasure up to their
laudable intentions. Thus in the part of the Reply now under discussion,
they suggest, by quoting in juxtaposjtion two sets of extracts from
speeches by Dr. Verwoerd 5, that there have been inconsistencies in the
formulation of Respondent's policy; and the same charge is expressly
made elsewhere on the strengtli of the same extracts. Hourever, as will
be shown, Applicants' accusations in this regard indeed depend on
quotations out of context. Thus they quote the following statement by
Dr. Verwoerd, Respondent's Prime hlinister :
"Reduced to Itssimplest form the problem is nothing else than
this: We want to keep South Africa White. ..'Keeping it White' can
only mean one thing, namely White domination, not 'leadership', not
'guidance', but 'control', 'supremacy'. Ifwe are agreed that it is the
desire of the people that the White man should be able to continue
to protect himself by retaining White domination .. . we Say that
it can be achieved by separate development 4."
However, the context of Dr. Verwoerd's speech leaves no doubt at al1
that by fhe wo@s '!South Africa". he-meant-, and wrruld.obviously. have
been so understood, that part of the coùntry which would, in terrns of
the policy of separate development, remain available for White occupa-
tion, and that he did not iiitend to depart from the often expressed
objective of providing homelands for the Bantu in which they would be
able to develop to the full extent of their capacities. Indeed, in the course
of the very same speech, Dr. Verwoerd said, interalia:
"1 quote from the speech 1 made when addressing the Natives'
Representative Council ...
'The only possible way out . .. is . .that both, i.e. t,e White
' IV, p 263.
I.e., inIV, Chapter IVl33.c.of theReply.
Part F et seq.infun.
' IV,p. 264.
Vbid., pp. 264-265. . .
Ibid., pp275, 315-317252 SOUTH WEST AFRICA
man and the Bantu, accept a development separate from each other.
The present Government believes in the domination (baâsskap) oi
the White man in his own area, butit equally believesin thedomination
(baasskap) of the Bantu in his area l.(Italics'added.)
On 27 January 1959 I said inthis House-
'South Africa is at the crossroads. It must be decided whether it
will go in the direction of a rnulti-racial society with a comman
political life or whether it wilI bring about total separation in the
political sphere .. .
1also see to it that 1choose a course by which on the one hand I
retain for the White man alone full rights of government in his area,
but according tu which I give tothe Bantu, under our cave as their
guardians, a full ofiporlunity in tkeir own areas $0fiul fheirfeeton the
road of dewelopmendalong which ihey can make progress in accordance
with their cafiabilitiesAnd if it so happens that in future they pro-
gress to a very high level, the people living at that time will have to
consider how further to re-organize those relations. : .' (Italics
added.)
1 furtherstated, on 20 May 1959-
'1 would rather eventually have a smailer State ilaa South Africa
which is White and which svill control its own army, its own fleet,
its own police and its own defence force, and which will stand as a
bulwark for White civilization in the world; in other words, I would
rather have a White nation here which can fight for its existence
than a larger State which has already been handed over to Bantu
domination .. .2'(Italics added.)
'...The standpoint of the National Party is one of striving for a
permanently White South Africa, whatever dangers may threaten it,
but which is prdfiared tu develofi areas in which Bantu control may
increase undev the guidance of the Whiles as guardians, and with the
understanding that eues lhoughthisshould lead loBantu independence
we will try by our statesmanship to ensure that this development
takes place in such a spirit and in such a way that friendship wrll
remain possible, but without the White man ever finding himself
under any form of Bantu control ... 3' (Italics added.)
Theïe mas no doubt whatsoever as to the attitude of the National
Party: The White man will govern his country and the Bantu wilL
governhis fieofil&,his areas ... 4" (Italics added.)
9. It is clear, therefore, that Dr. Verwoerd has never recanted his
promise to provide separate homelands for the Bantu groups, and that
Applicants' accusation of inconsistency has some superficial plausibility
0n1y because Applicants have, contrary to their protestations, quoted a
single extract from Dr. Verwoerd's speech cornpletely out of context.
IO. A different fonn of quotationout of context affords the explanation
forthe inconsistency suggested by two further quotations frorn speeches
R. ofS.A. Parl. Deb., HousofAssembly, Vol. V,2nd Sess., Second Parliament,
(Jan. 1963).Col.225.
Ibid.C,ol.228.
Ibid.C als228-229.
Ibid., Col230. REJOIPIDER OF SOUTH AFRICA 253
by Dr. Verwoerd '.The context which Applicants ignore is not that of
content, as in the case considered above, but that of the time when the
two speeches were respectively delivered. It willbe noted that ten years
separate the two addresses, the earlier having been delivered in 195r,
and the later in 1961. Respondent explained in the Counter-&lemorial
that post-war circumstances and events resulted in widespread changes
of government policies throughout Africa. Respondent liasnever disputeci
that its policy has also undergone development and adjustment during
the past years-indeed, one chapter of the Counter-hlemorial3, \vas
devoted solely to such development and adjustment. In the course
thereof Respondent particularly stressed the fact that public announce-
ment on its behalf of the possibility of independent Uantu states,,as an
attainable end result, first occurred in 1959 ,nd esplained the reasons
therefor, as well as commenting on implications thereof 4. One develop-
ment since 1951 has been that the political advanccrnent of the Ratitii
lias proceeded at a faster rate than was anticipated or announced at the
time. ln thisregard, there can bebut few, if any, policy staternents mado
in 1951 on behalf of any government with interests in Africa which were
still of unqualified application ten lrears later. It is consequently difficult
to see what inference Applicants seek to draw from the fact that in 1961
Respondent's Prime Minister spoke of a greater degree of ultimate
indepcndence for Hantu homelands than he had mentioned a decadc
earlier.
'The further statements of Dr. Verwoerd quoted by Applicantçl are
dealt with elsewhere and do not require any comment at this stage.
II. The only further source quoted by Applicantî in support of tlieir
contention that "the decisively relevant facts concerning Respondent's
policies . . . are undisputed"5, isthe Counter-Memorial, from which long
cxtractç are cited. l'liese extracts exclusively concern certain facets of the
economic aspects of liespondent'ç'policies, and related questions re-
garding educational policy. As noted, these are presented as being
"decisive"-thus paving the way for the later assertions that such
economic aspects (and especialiy the negative parts tliereof) constitute
the "primary end" of Kespondent's policies This is a major distortion.
The primary question at issue is political-the form which self-rule and
self-determination rnust take in order tn avoid strife and sfruggle for
domination and preservation, and to ensure harmonious relations. In
order to secure justice and sound relations in these respects, which are
of overriding importance, separate development is desirable. As a con-
sequence, boundarp lines become necessary also in thc econoniic sphere,
otherwise atternps at political separatism ~~ouldbe rendered nugatory.
The system of separate development in the economic sphere in itself has
outstanding advantages for the Native peopies, as has been shoivn in the
Counter-Memorial ' and will be further demonstrated herein Thrit jt
IV,p. 265.
II, Book IV, Chaps.VI and VII.
Ibid., Chap. VII.
II, pp464-466 (paras 14-17)and 487-488(para.62).
IV,p. 262.
Vidu para.I. supra.
FIVideIsec.H, infra.ecs. A-D: in particulare.g.. pp.101-103.zj4 SOUTH WEST AFIIICA
must in some respects or circumstances have adverse effects for certain
individuals is inevitable-but, as will be shown, the extent thereof is very
limited and the compensations more than adequate. To speak of such
adverse or limitative aspects as being in themselves part of the "priman
end" of separate developrnent, is,it is submitted, ridiculous.
12. Certain major points of attack advanced by Applicants as regards
the general principles and approach of the policy of separate develop-
ment, particularly the so-called "homeland policy", occur repeatedly
in the Reply-e.g., in the text thereof, sometimes more than once, and
again in the various Annexes, especially Nos. 1-4. Respondent will in the
following sections deal with such points with reference to all the various
places at which they occut in the Reply, and thereafter deal seriatim
with rernaining points in the text and Annexes.
C. HistoricalBackgroundin South Africa Itself
13. In the section of the Keply, dealing with rights of residence,
security of the person and freedorn of movernent, AppLicants allege that
"... Respondent relies upon its version of history as justifying pre-
emption oi 70 per cent. of the Territory for a srnall minority of the popu-
lation" '.And they Say further:
"Although Respondent's historical survey deals with South
Africa itself, thus raising a question of relcvance in respect of the
international obligations assumed with respect to the Mandate,
Applicants are constrained to set çtraight the historic record,
inasmuch as Respondent places so heavy an emphasis upon its own
version l."
Applicants thus create the impression that Respondent relies heavily
upon its version of South African history as justifying "pre-emption" of
a large portion of South West Africa for the White minority of the
population of that Territory. In this regard Applicants refer to Chapter
VI1 of Book IV of the Counter-hfemorial where Respondent explained
in two short paragraphs that in South Africa the policy generally known
as segregation was founded on the basis of the historical circumstance
that the European and Bantu groups tended to settle in separate and dis-
tinct partçof the country 3.Beforereferring to this circumstance Respond-
ent made itperfectly clear, however, that the policies and practices
adopted and applied in South West Africa had always been moulded with
reference to circumstances as they existed in the Territory, and that.
while Respondent was frequently influenced, inted ria, by experience
gained in South Africa itself in regard to comparable problems and
policies aimed at their solution, any translation of such experience into
action in South IVest -4frica occurred solely on the basis of dueadaptation
to the needs, interests and circurnstances of that Territory, and of the
principles and objectives of the Mandate '.Respondent was also at pains
to explain that, while it would be instructive to make brief reference to
certain aspects of policies relating to group relations in South Africa,
IV, p.458.
There is no question of 70 per cent. of the Territory having been set aside or
reserved fothe iï?iite group. Vida par4.supra.
Vide II, pp. 461-462.
Ibid., p457. REJOINDER OF SOUTH AFRICA 255
Respondent did not propose to attempt anything approaching even a
full sketch of the development of such policies l.lt is consequently not
clear to Respondent how Applicants could have been brought under the
impression that Respondent relies heavily on South African history as
justification for itspolicies inSouth West Africa.
14.Ili what they term a "Relevant Historical Resumé" 2,AppLicants
in the Reply purport to-
". . .correct the fundamentally false impression Respondent creates
of a kind of historic 'separateness' or apartheid. which it asserts as an
expianation and justification for its present policies . . . 3".
In this "Kesumé", apart from referring to the 1g60 census figures per-
taining to the Territory 4, Applicants deal only with events in South
Africa itself, and, as has already been shown 5,they do not seck to contra-
dict Respondent'ç expositions 6 of the historical and çocio-economic cir-
cumstances in South West Africa which compelled Respondent to adopt
a palici of differentiation in the Territory, but expressly admit the sub-
stantial accuracy thereof. It is,therefore, highly surprising to find that
nt the end of their said "Kesurné" Applicants refer to the contents thereof
as a "correct version of developments in South Africa and in the Terri-
tovy . .." '.
15. 1t appears on analgrsis, that Applicants, in the said "Resumé",
piirport to show:
(a) that South Africa was aIready effectively occupied bu non-White~
before Europeans began to settle in the country;
(b) that the Europeanç proceeded to take occupation of non-White
land ;
(c) that the Voortrekkerç, being "an exceptionally colour-conscious
people", established "a caste system" 4 which was maintained at
and after the unification of South Africa; and
(dl that as a result of the influx through the years of Natives into
White areas, a multi-racial Society in South Africa, as in South
West Africa, is a fact.
The Jast aspect, which apyearç tohave little, if any, relation to history
in the true sense of the word, is dealt with in the next succeeding para-
graphsof this Rejoinder. Although, in view of what has been çtated above,
the rest of Applicants' "Reçume" has very littie, ifany, relevance t~ the
issues in these proceedings, liespondent deems it desirable tu deal briefly
with Applicants' version of history. However, inaçmuch as Respondent
does not wish to interrupi its discussion of Applicants' attack on. its
general principles of policy with an exposition of purely historical facts,
Respondent will deal with the matters referred to in sub-paragraphs (a)
to (c) above in an Annex to this section of the Rejoinder-Annex A. In
the said Annes Respondent will al50deal with matters of history raised in
the 1963 report of the UtaiteriNations Special Cornmittee on the Policies of
1 11,p. .+Gr.
IV. p.459.
Ibid., pp.455-459.
+ Ibid., p.4Go.
Vide Chap. II. para. 1,supra.
Vide. cg., III. pp. "8fi.
IV. p. 464.(ItüIics added.1256 SOUTH WEST AFRICA
Apartheid of the Government of the RePzdblic of South Africa ,n estract
from which report is contained in Annes 3 to the Reply l.
Kespondent wvillin its treatment in Annes A hereto show that, far
from "set[ting] straight the historie record", Applicants and the said
United Nations Special Committee create an entirely misleading image of
historical events in South Africa; that thcy make several allegations with-
out reference to any authorities wfiatsoever, and that, even when they
quote sources, these for the most part (10not bear out their allegations.
D. The Allegation that in South West Africa, as in South Africa Itself,
"A Plural or Multi-racial Society 1s a Fact"
16. As has been pointed out above 2,Applicants in the Replp, under
the heading "Relevant Historical Resume", purport to show that-
"[iln South iVest Africa, as in the Republic itçelf, a plural or multi-
racial çociety is afact ; policies based upon a contrarjr premise rest
upon a fiction 3".
This theme, emphasizing to what estent, in both countries, Natives live
outside the reçerves and have allegedly becorne "detribalized", also occurs
in several other parts of the Keply 4. In the çucceeding paragraphs Re-
spondent wiIl deal firstwith the relevant allegations pertniiiing to South
Africa, and then witli those relating to tlie Territory. Siiice, however,
conditions in South Africa are not in themçelves in issue in these pro-
ceedings, Respondent does not propose to diçcuss the former allegations
fully, but willmerely point to some facts in order to show that Applicants'
conclusion, quoted above, is without substance.
17. On analysis, the contentions advanced in the IZeply in support of
the said theme with regard to South Africa, appear to ht: the following:
(a} tliat the Bantu reçerves could not in the past, and cartnot at present,
support their inhabitants "even at the subsistencc level" j;
(6) that as a result of pressure on the land in the reserves, the Bantu
inhabitants are economically obliged to resort to wagc-earning in
the \\'hite areas to such an estent that at present less than 40
per cent. of the indigenous inhabitants of South Africa are living in
tlie reserves, while the Bantu population of the White areas, es-
peciallv the urbail areas, is increasing rapidly 6;
(c) tiiat as a result of tlie aforestated developments Bantu have been
present for several generations in the White areas, and have become
a permanent part of the population of such areas 7; and
(d) tliat many of the Bantu living in the White areas have become
"largely detrihalized and have little attachment to tliereserves" '.
18. In the Counter-Mernorial Reçpondeiit pointed out that before
Union the then governingpowers of what are at present the four Provinces
IV,PP. 349-353.
Vide para.Ij, supra.
3IV, p.460
fbid.pp. 317-318. 332, 351,357.
Ibid.p. 351.
Ibid.pp. 317, 351,459 and 462.
Ibid., pp332and 459.
Ibid., p459.
III,p. 236. KEJOINDER OF SOUTH AFRIC;\ 257
took concrete steps to provide for the Bantu groups and tribes protec-
ted possession of lands of their own, and that 9,976,290 morgen had been
set aside in South Africa for the exclusive use of Bantu. Reçpondent
further stated that after Unioiithe Native Lands Act of 1913 had clearly
demarcated the Bantu reserves, and that the South African Native Trust,
established in terrns of the Native Trust and Land Act of 1936, had during
the period 31 August 1936 to 31 March 1953, acquired further areas
to the estent of 4,121,020 morgen for the sole use and occupation of
Bantu l.Moreland has since been acquired, and as at 30 September 1964,
the position was that only 1,856,270 morgen of the quota of 7,250,000
morgen provided for in the last-rnentioned Act still had to be acquired
by the Trust 2.
19. In passing it may be pointed out that there is no substance in the
allegation that "[tlhe delay in the acquisition of the land" by the Trust
"is due to the resistance of European farmers and the inadeqiiacy of
funds nppropriated for the purpose", and that, in contrast, "[tlhe 'Black
Spots1-African-owned land in European areas-are . . . being rapidly
eliminated" 3.
Although it is true that some White farmers have been unwilling to
seIl their landto the Trust, greater resistance has been experienced in the
case of Bantu to whom larger and better areas than their own have been
offereclin eschange for their land situated iti the IVhite areas. In the
wordç of the Prime hlinister of South Africa:
"Our problem . . . in regard to matters pertaining to land is the
psychology of the Native. If a Black spot is bought out,and even if
a more expensive, larger and better White area adjoining this Bantu
area is given gratis to the inhabitants of this Rlack spot, generally
there is the greatest dificultjin getting them to move. Then there is
alot ofunjustifiable talk about oppression and coercion .. .Therefore
it is essential that this proceçs should rather take place through
proper CO-operation between the Bantu Government and the White
Government *."
The Prime Minister rnentioned:
"1 want to add this nlso. In the Transkei there iç a very special
problern, namelv the \Vhite spot problem. In terrns of what 1 have
just said, those areas \vil1in the meantime remain White spots, and
therefore under the control of the Republic, but the process, as 1
have announced earlier, of the gradual and, if possible, rapid darken-
ing particularly of the smaller White spots, will have to. take place.
In other words, portions of the White spots will continually pass '
over into the territory of the Transkeian Govcrnment. In the case
of Umtata, because it is big, the problem isconsequently also greater,
and it will take longer to solve, but 1 do not think anyone can escape
the fact that just as a citp like Nairobi and large \irhite areas in
Kenya faIl under that Government, so in the course of time also a
city like Umtata will become part O[ the territory of the Transkeian
Government 3."
l III, pp. 236-238.
Departmental information.
IV, p. 351.footnote r.
'R. ofSIA. Pari. Beb., Houseof Assembly, Vol.2 (rgGz), Col. 87.
Ibid.. Co88.29 SOUTH WEST AFRICA
l,Iost, if not all, of the so-called"black spots" are overcrowded, without
proper water supplies or adequate roads. They are tiny islandç in the
White areas offering no scope for expansion to meet the needs of tlieir
ever-increasing population. Experience has shown again and again
that the ultimate advantages to the Bantu concerned of the elimination
of these spots, and the provision of new land adjacent to existing Bantu
reserves,far outweigh any possible initial disadvantage and inconvenience.
Itmay be pointed out that only 90,34 9 orgen (i.e., less than 13 per
cent.) of the total of 728,537 morgen which were irtitially regarded as
"btack spots", have so far been cleared l,while more than 70 per cent. of
the land intended for acquisition by the Native Trust in terms of the
Native Trust and Land Act has already been acquired for the sole use of
Bantu *.The sweeping assertion that there has been undue delay in the
acquisition of land for Natives by the Trust, in contraçt to the rapid eli-
mination of "black spots", is consequently devoid of substance.
20. In the Reply and its Anneses repeated reference is made to the
fact that the Bantu areas comprise only approximateiy one-seventh of the
total area of South Afnca 3.Respondent has to point out, however, that
an arithmetical comparison of the land held by Europeans and Rantu
respectively is quite unrealistic, since the Bantu reserves have a much
higher agricultural potential per unit or area than the ll'hite farrning
areas. This matter will be further dealt with below 4.
21. In support of its allegation that the reserves cannot support their
inhabitants "even at the subsistence level", the United Nations Special
Cornmittee, in Annex 3 ta the Reply, refers to the report of the Tomlin-
son Commission in which it was allegedly stated that "the Reserves cari
decently support onlv half of their population" \Ithat the Commission
in fact çaid, was thatthe reserves coiild support about 51 percent. of their
population in a subsistence agriculture The Commission further esti-
rnated that when the iuIl quotaof land provided for in terms ofthe Native
Trust and Land Act has been acquired, the reserves would be able to
carry 50,000more farming families, i.e., altogether 357,000such families '.
It should be observed that the ~955 finding of the Tomlinson Cornmis-
sion was based on the state of affairs which then existed in the reserves,
and whichwas largely a legacy of past neglect and policies of laisser-faire
The same Commission stated, however, that-
". ..from the present hackwardness . ..flows simuitaneously the
realisation of the great increase in carrying capacity which could be
lDepartmental information.
Vide para.r8, supra.
Vide IV,pp. 331, 351 and 359.
" Videpara. 48, infra.
"v, p. 351.
U.G. 61-1955,Chap. 28,p. iiq (para.?O).
Ibad.. para2 1.As regards theallegation that "[t]he most optimistic estirnates
place the agricultural potenti01the reserve at nearly20 per cent. of that of the
Republic", vide IV,p. 351 it should benoted that the Tomlinson Commission found
that after the additiof land stilto i>acquired under the Sative Trustand Land
Act "the Rantu nrcas will .. .contain 23.2 per cent. of the Union's agricultural
potentialH-U.G. Gr-1955. Chap. 26,p. i 17(para.41).
Vide para.25. infra.2b0 SOUTH WEST AFHICA
of Bantu Administratioii and Development, {$.hile other government
agencies are activelp promoting industrial development in areas border-
ing on these homelands '.
it follows that in the future there will be no question of the Bantu
homelands not being able to support their present populations, and even
increased populations. ln fact, the comparntively recent industrial revo-
lution in South Africa has made it possible to create econoinic growth
points in and on the borders of the homelands to such an extent that their
carrying capacity tvill, for practical purposes, be almost unlimited.
23. liespondent concedes, homever, that at an earlier stage in the
evolution of the South African economy from a mainly pastoral-agri-
cultural to an industrial one, Bantu who wished or were compelled by
economic pressures to earn cash ivages, had little realchojce but toleaire
the reserves and enter the White areas in order to find employment.
One of the main reasons why the reserves could not in the past support
al1 their inhabitants, was that the Bantu were not soil conservation-
minded farmers, but semi-nomadic, shifting cultivators who persisted in
their wasteful agricultural and pastoral practices-even when the possibil-
ity of trekking further afield in searchof freshsoilandpasture, rather than
tocultivateorgrazereasonably, had ceased.Thereserves, therefore, became
over-populated only in terms of the particular type of uneconomic non-
industrial utilization of resources which had prevailed there in the past.
In this regard it should be kept in rnind that during the entire period
between 1910 and 1948 the National Party was in power for less than
ten years (1924-193 3nd, that practical circumstances-especially the
depression of the xggos-prevented the successive governments from
accomplisliing much in initiating economic reliabilitation of the Bantu
areas during the decade preceding the Second World War. That war,
and its aftermath, prevented effective progress for many years, and the
present Government consequeiitly iriherited the relatively seriaus situ-
ation inthe reserves depicted by the Tomlinson Conirnission.
It would be wrong, however, to assume that economic prcssure in the
reserves was the only reason that gave rise to the influx of ISantu into the
\lrhite areas. Traditionally the Bantu male regarded himself as the hun-
ter, the \varrior and the stock farmer, soil cultivation being left to the
wornan. Consequently, as he found lcss opportunity of evercising his
traditional calling, he did not turn to the land, but preferred to do a
"man's job" by sclling his labour in the \lrhite areas. Others went in
search of adventure, and while some returned, others stayed in the cities
and on the fams in the said areas.
24. Applicants point out that at the time of the 1960 census only about
39 percent. of the Bantu in South Africa were in their honielands 2,while
the Rantu urban population in the White areas had by thcn increased to
3,444,000 3.These figures are substantially correct 4, but it should be
Yi& para. 52.infra.Itisclear,therefore, that theisno substance inthe as-
sertion of the Hon. O. D. Schreiner that Respondent's "Bantustan policy" does not
seek "the physical developrnent of the Reservesm-videIV, p. 318.
"bid.,P p.317.d 351.
* If Bantu bornoutside South Africa are exçluded, the numbof Bantu living in
the homelands amvuat to 40 per cent. of the total Bantu population ofSouth ,
Africa. KEjOINDER OF SOUTH rlFRICA 261
kept inmind that it was anly during the last 30 years that the number of
Rantu in urban areas stnrted to increase significantly. Thus tlie total
Bantu urban population in 1921 mas 587,000 (or 12.64 per ceiit. of the
total Bantu population), and in 1936 it was 1,245,6 8or18.89 per cent.
of the total population) l.There is consequently little substance in the
suggestion that substantial nurnbers of Rantu "have been present /or
severalgenerations" in the IVhite areas 2.
It should also be observed that large numbers of tlie Bantu living and
working in the White areaç are not South Africans, but corne from the
British High Commission Territories, or territories to the north.
Nevertheless, Respondent concedes that substantial numbers of South
-4frican Bantu are at present living in the IVhite areas, and that this
fact constitutes a very real problem. As will be shown 3, houTever,the
problem için Respondent'ç view by no means insoluble.
25. The significant increase in the numbers of Baritu in the \irhite
areas sincc approximately 1930 was partly the result of circumçtances
beyond any government's control (a period of prolonged depression,
followed by a world war and economic readjustment), but partly also of
a Eaisser-fairepolicy, especially during the period in which the United
Party was in power. The effects of this policy have been thus stated in a
memorandurn esplaining the background and objects of the Proniotion
of Uantu Self-Government Bill of 1959:
"The Bantu areaç have consistently beeii preçerved as living çpace
solcly for the Bantu. No European may settle in a Bantu area with-
out the permission of the Bantu community andthe Union Govern-
ment, and when permission is granted it is restricted to a specific
purpose, for exaniple the rendering of a particular service. Similarly,
itwas the intention that the Bantu should not enter the European
area without the consent of the European comrnunity, and then, too,
on,. for the purpose of rendering a specific service.
1he last-rnentioned purpose was, Iioivever, gradually lost sight
of with the result that the Rantu, for whose sole use certain living
space had been set aside, was allowed to occupy the living space of
tlie European, while the European was and still is prohibitcd from
occiipying or entering the living space of the Bantu for any other
purpose than the rendering of service to the Bantu in the spiritual,
economic and administrative fields.
The issue was further clouded in that permission Inrasgranted to
Bantu, at first tacitly and later even by Legislation, to scttle ona
family basis in the European area and thereafter to obtain residen-
tial rights onthe grounrl of birth in that area, while the granting of
corresponding rights to Europeans in 13aiitu areas was, and is to
this day, not tolerated. In this way the living space of the Euroyea~i
was invaded not only by Union Bantu but aIso by Bantu from the
three Protectorates and even Bantu from numerous other territories
in Africa.
Contrary to the stated basic aims the Bantii has been allowed to
make his home whercver he elects in the whole of South Africa and
Departmental information.
IV, p.332. (Ttalicadded.)
Videpara. 25, iizfra.262 SOUTH WEST AFRICA
this practice has necessarily created the impression that, in addition
to exclusive rights in the Bantu areas, the Bantu can also lay claim
to the same rights as a European in the European areas, which have
been set aside solely for the Europeans.
The fact that Bantu from the three Protectoratesenter the Union
in great numberç on precisely the same basis as Bantu from the
Union's reserves enter the European area, clearly illustrates how
untenable this view is. It stands to reason that no Bantu from the
Protectorates can lay claim to civil rights in the Union. TheTranskei,
for example, is economically less dependent than Basutoland upon
the labour market of the European area and it is, therefore, illogical
to grant rights in the European area to the Xhosa, which are denied
to the Basuto, merely because the former's country was formally
set aside only after Union and not three years previously at the
time of Union '."
In returning to the basic aims, mentioned in the above passage, the
present Government realized that the solution of the problems created
by partial deviation from the said aims in the past, lay in the intensive
economic development of the Bantu homelands. As has been pointed
out 2, Kespondent has embarkedupon a programme of such development,
and it is estimated that the tide will turn b rabout 1978 when it is ex-
pected that emigration ofBantu from the \ hite areas will exceed immi-
gration of Bantu to such areas j.
26. Applicants quote passages from the reports of the Holloway
Commission, the Social and Economic Planning Council and the Fagan
Commission with a view to demonstrating that these bodies were of the
opinion that a policy of separate development did not provide a soliition
to the race problem in South Africa. It should be observed, however,
that these bodies reported before the present Government came into
power, and during a period when, as a result of the above-mentioned
policy of Laisser-favi irua,lly nothing was done to develop the Bantu
homelands and to stem the influx of Bantu into the White areas. What
is even more important is the fact that the major industrial revolution
in South Africa, which has made sufficient capital available for extensive
economic development of the homelands, only occurred after the said
bodies had reported. The views eupressed before 1950 by the Social and
Economic Planning Council and the two Comrnissions consequently
Iiave little relevance to the prospects of the present Government's policy
being sriccessfully implemented in the South Africa of the 1960s 5.
l1V.P. 3-'59p,p, 4-5.
2 Vide para.22,SUPIO.
' R. O/ S.A. Port. Deb.. Houseaf Assembly. Vol. 7 (1963).Col. 6930.
'It may be pointed out Applicants have leit out a phrase in the extract from the
report of the Frigan Commission quoted by them at IV, pp. 462-463. The Com-
mission stated that "the movament from country to town . ..may . . be guided
and regulated, and may perhaps also be liniited, but titcannot be stopped ..."
curain theReply, although no indication is given that it is Ieft out.oes iiooc-
The same is a foriiori trofthe opinions expressed byProf. de Kiewiet in 1941.
and in 1956. when he no longer had any direct contact with South Africa-vide
IV. pp.463-464. As regards the general unreliability of the vofProf. de Kiewiet.
uidc sec. H, Chap. II, paras9-10and 93, and Chap. V, para. 3.inira. REJOINDER OF SOUTH AFRICA 263
27. As regards the last contention mentioned above ',vu., that many
of the Bantu living in the White areas have become "largely detribalized
and have little attachment to the reserves" 2,it should be observed that
no authority whatsoever isquoted in support of this contention, which
clearly is not based on facts. In this regard reference may. be made to the
following statement of the present Mjnister of Bantu Administration and
Development :
"... 1 want to make this statement that the vast majority of those
people [Bantu living in the White areas] have never lost their links
with their own territories. I personally made some pilot surveys and
the Tonilinson Commission made a large number of pilot surveys
over the whole country, and it was found that easily 80 per cent., if
not more, of those Bantu had alwaysretained some link or other with
the Bantu areas. M'eare not faced here with a problem of displaced
perçons. Our practical experience has been that although a Bantu
has been in the city for years, for perhaps two or three generations,
he still knows where his tribe is, and you will be surprised to know,
sir, how readily he is absorbed again into his tribe 3."
Commenting on the assumption that Natives who have lived in the urban
areas of Africa for some time have necessarily lost affinity with their
tribes, Melville J. Herskavits, Praiessor of AfricanStudieç in the North-
Western University (U.S.A.), has stated :
"An outstanding example of this kind of reasoning is to be seen
in the concept of detribalization, which has had considerable vogue
among students of conternporary Africa. It was especially ernployed
in analysing African life in the new cities that came to dot the Sub-
Saharan continent, especially in the Union ofSouth Africa,where the
twin forces of urbanization and industrialization have been more
powerful than anywhere else. Again, in its forma1 aspect, modes of
African city-life seemed so different from indigenous patterns that it
was prima facie impossible to continue antecedent conventions, and
that adjustment in terrns of eariier orientations was inconceivable.
Itissignificant that one of the firstattempts to correct perspective
was that of an African scholar, Z. K. hlatthews '.Writingsome years
before the concept of reinterpretation had been advanced,he clearly
saw the power of aboriginal custom in shaping the life of the urban
dweller in the Union. Anticipating by at least two decades the swing
toward greater balancein thestudy of the urbanized African whereby
tlteconceptof 'dekibalization' came ta berejected,he stated: 'It seems
altogether unwise to attempt to drive a wedge between this urban
group and the so-called purely tribal native by refusing torecognize
what lhey have in cornmon and the contribution whicIzth former can
make and are making to nathe life and tho'ughtbby lheirsyntkesis of
l Vide para. I7(d), supra.
2 IV.p. 357 and vide also p.462 where Appticants statethat many Bantu have
become "permanent residents of the 'iVhiteareas' complelely divorced lrom the
reservesand fromthe tribal slructures". (Italics added.)
V. ofS.A. Parl. Deb., House ofAssembly, Vol. IOI (rgsg),Coi.6021.
+ Prof. Matthews is a South African Bantu;citedby Applicants;videIV, p. 290.264 SOUTH WEST AFRICA
Western ad Xative conceptionswhereverthey arecomfilemelttaryand
not cmtradicto~y' l." (1talics added.)
But even in so faras some Bantu may have lost most affiliations with
their tribes and the homelands of their origin, it would be wrong to
assume that they have.adopted the culture and concepts of the Urhite
group. On the contrary, in South Africa, ns in other parts of Africa, even
Bantu intellectuals do nat become absorbed in European culture or cus-
toms. In the words of Edward Shills:
"Most intellectuals in zrnderdevelopedcountriesare not as 'cz~ofl'
jrom tl~ir own czrltzrras they and tlseirdetractorssnggest. They live
in the middle ol it,their wives and mothers are its constant repre-
sentatives in theirmidst, they retain close contact with their families,
wliich are normally steeped in traditional beliefs and practices. The
possession of a modern intellectual culture does remove them, to
some extent, from the culture of their ancestors, but much of Ihe
latterremain.s and litteson in tkem (Italics added.)
in sum: the various population groups in South Africa have retained
tlieir own separate cultures and identities, and have never forrned an
integrated society.
28. In view of what has been stated above, Respondent submits that
there is no substance in the assertion thrit in South Alrica "a plural or
multi-racial society is a fact".
29. It is significant that Applicants go to much greater length in the
case of South hfrica than in the case of South West Africa in their attempt
at substantiating their basic contention under consideration. In fact,
Applicants, in respect of South \Irest Africa, merely quote some of the
1960 census figures reported by the Odendaal Commission and then pro-
ceed to make the sweeping and unsubstantiated statement that in Soutli
West Africa "a plural or rnulti-racial society is a fact" 3.
30. As regards the census figures relied upon by Applicants 3,it is true
that attlie time of the censusIO per cent. of the population of the narth-
ern territories were working in the Police Zone. Applicants fail to men-
tion, however, that this IO per cent. were working on a temporary basis,
i.e., for periods ranging frorn one to two and a half years, that tapprosi-
mately 28,50 0 vambos and Okavangos concerned were in fnct perma-
nently domiciled in the northern territories, and that the11had their fanii-
lies, cultural, social and political connections and affiliations in those ter-
ritaries. Applicants also fail to mention that, according tothe same census
ures, 54.4G'percent. of the total population of South West Afnca (and
9 .3 per cent. of the groups involved), was permanently domiciled in the
northern terntories, which are exclusively reserved for Natives 4.
With regard to the Police Zone, Applicants create the impression that
the quoted census percentages relate only to Natives. This isnot the case.
The report of the Odendaal Commission clearly shows that of thetotal
pofiulationO/ thePolice Zone (inclusive of Europeans, Coloureds, Basters
and Natives) 47 per cent. were in urban areas, 37 per cent. in the rural
' "The Role of Culture-Patternin the African Acculturative Experience",
PrkseaceAfricaine (Africa's 0%-nLitcrary Review). Vols.6-7, SOS.34-35, p.14.
* Shills. E., "The Intellectuals in the Political DevelopmenWorid Politics.
P.349.
IV,p. 460.
* R.P. 12-1964, p. 41. REJOINUER OF SOUTH AFRICA 26j
areas ancl 16 per cent. in the reserv-es l.Rioreover, a percentage of the
Natives residing in botli urban and rural areas were doing so on a com-
pletely temporary basis, being in fact pern~anently dorniciled in the re-
serves.
Furthermore, even those Natives apparently settled in areas occupied
by the White group usually maintain strong ties of family, kinship and
culture with members of their respective groups in the reserves, and often
work in such White areas for the specific purpose of saving money to go
back to a more peaceful existence in the reserves. Within the White areas
they maintain their group identity, and socially and culturally mix almost
esclusively with members of their own group. Numerous examples of this
fact are on record, such as that the Ovambo requested the erection of a
separate school for their children inthe new Katutura residential area for
Bantu in Windhoek; that the Herero traditionally resort to separate
dwelling areas and even refuse to have their dead interred in the sarne
cemetery with the dead of other ethnic groups; and that even on farms
Native employees usually maintain a strict code of separateness bp living
apart and not integrating socially with different ethnic groups 2.
31, It istrue that, as in the case of South Africa, the substantial
number of Xatives at present living in the White areas constitutes a
real problem. For the following reasons, however, this problem admits of
a relatively easy soIution in the case of the Territory :
(a) As pointed out above, 98.3 pet cent. of the groups for which the
reserves in the northern areas were set aside, are ordinarily resident
in those reserves.
rbj Zoneis so that they can become propcr homelands for the groupshe Police
concerned. As is shown in another section of this Rejoinder -',
implementation of the proposals of the Odendaal Commission will
bring about an increase of more than IIO per cent:in the size of the
reserves in the Police Zone. The percentage gain will be the highest
in the case of the groups which at present largely live outside their
reserves, viz., approximately gq per cent. forthe Nama, andnearly
700 per cent. for the Damar 3.
(c) Due to the fact that significant contact between the Native groups
and the Europeans goes back little more than half a century, and
that the influx of Natives into urban areas has not assumed serious
proportions, virtually al1 the indjgenous inhabitants of the Territory
living in the White areas çtill retain very strong tribal affiliations.
32. As in the case of South Africa, Respondent sees the solution of
the existing problem in the economic development of the proposed home-
lands. Implernentation of the recomrnendations of the Odendaal Com-
mission will, in Respondent's view, in the long run create conditions in
the homelands which will induce Natives now living in the White areas
to return of their own free will to the areas of their respective groups.
33. An analysis of the Annexes to the Reply shows that the only asser-
tions on which Applicants might conceiirably relÿ in support. of their
contention under consideration are that-
&,P. 12-1964, p. 41.
Vide sec.1.Chap. III, para. 7. infra.266 SOUTH WEST AFRICA
"Africaiis from the homelands temporarily employed in the White
zone are variously estimated at from 27,000 to 40,000, and altogether
some 160,000 live there-about one-third of the non-Mrhite popu-
lation1";
that-
"[a] total of13,70 D9amaras, Hereros and Namas and 8,893 Basters
are settlcd in Native reserves and the Rehoboth Gebiet which will be
included in their respective 'homelands'; this total represents less
than IO per cent. of the Non-European population permanently
settled in the southern section of the Territory *",
and that, on the basis of the recommendations of the Odendaal Com-
mission,
". . . the proposed 'White area' would initially have a de jncto
population of 73,106 Europeans and 116,383 Non-Europeans, as
well as an additional 28,621 Non-European migrant labourers
recruited from the 'homelands' on the northern border of the Terri-
tory.A majority of the Non-Europeans in the southern portion of the
Territory would thus live in the 'White' area rather than in their
'homelands' 3."
34. It is admitted that a relatively small percentage of the Native
population of the Police Zone, consisting of the Herero, Nama and Dama,
at present live in the reserves in the Zone.The assertion in Annex 2 that
the total number of non-Whites living in the reserves in the Police Zone
represents less than IO per cent. of thetotal non-mite population of the
Zone, is, hoaever, clearly wrong. A total number of 38,648 non-Whites
(not 22,602 as stated in the said Annex), representing 23.27 per cent.
of the non-White population of the çouthern sector, in fact live in reserves
in the Police Zone +.
The suggestion in Annex r that the number of Natives living in "the
White Zone" represents "about one-third of the non-White population",
is also not founded on fact. The total number of Natives living in the
Police Zone outside the reserves is 117,16 8.., approximately 26 per
cent. of the total non-White population of the Territory (452,540) 4.
The assertion in Annex z that on the basis of the recomrnendations of
the Odendaal Commission the proposed White area would initially
have "a de facto population of 73,106 Europeans and 116,363 Non-
Europeans", is in broad substance correct, but the further ailegation
that-
"[u]nless continued European immigration alters the position, Non-
Europeans would also continue to form the majority of the popu-
lation in the 'White' area 3",
may not rernain true for the future. The United Nations Secretariat
obviously ignored the fact that the reserves in the Police Zone are to be
increaçed by over IIO percent. 5and that, as a resultof that fact, as well
as of the various developrnent projects envisaged for such reserves, they
will be able to support many more Natives than at present.
IV, p. 336.
Ibid.. p.342.
'R.P. So..12-1964, p.41.
5 Vide para31. supra. REJOINDER OF SOUTH AFRICA 267
35. In the result Kespondent submits that there is no substance in
Applicants' contention that "Ciln South West Africa . . . a plural or
multi-racial society is a fact".
E. The Alleged Unfairness of the Allocation of Land Proposed by the
Odendaal Commission
36. Applicants' atlegation that the allocation of land proposed by the
Odendaal Commission would be unfair towards some of the inhabitants
of the Territory involves, upon analysis, fivedifferent grounds of corn-
plaint. These will now be mentioned and dealt with in turn.
37. In the first placeAp Licants are opposed to the principle of sepa-
ration as such: they eontenfthat Respondent'sairn rhould be"the inrtitu-
tion of universal adult suffrage and the promotion of participation on the
part of al1 qualified individuals in al1levels of government and admini-
stration, within the jrnmework of asingleberrilorialunit" l.(Italics added.)
Applicants contend that this is the policy which Respondent should
adopt for the Territory, but they have not made any systematic attempt
to show why such a policy is to be preferred in principle to the one applied
by Respondent, or to weigh up the advantages or disadvantages of the
two alternatives
The principle of having a partition at al1iç inextncably bound up with
Respondent'~ policy of separate development, and therefore falls to be
considered within the broad framework of that policy. Respondent has
already dealt with the necessity of applying such a policy in South West
Africa =, and cloes not propose to repeat what has been stated in this
regard.
38. In the present context, Respondent would rnerely draw attention
to the fact that Philip Mason, whose views are reproduced in Annex I
of the Reply ', does not appear to support Applicants' outright condem-
nation of any form of differentiation or separation between groups. For
the Republic, he is apparently prepared to accept partition as a solution,
provided only that there should be "a far more equable division of
resources" As to South West Africa, he recognizes the existence of a
special problem, saying :
"It would be quite wrong to suggest that the problem of dealing
with a more developed and a less developed population within the
same nation-state is anywhere easy. India is finding the Nagas a
problem and the United States have not found a wholly satisfactory
answer for their Amerindians. let alone the Negroes. Both these
countries have thegreat advantage that the less advanced groups are
minorities and thus that if any assimilation takes place it is likely to
be the more advanced culture that prevails. South Africa's problems
are far more intractable.
The Odendaal Commission has rightly pointed out that in such
circurnstances the less developed culture needs bot h protection and
IV,p. 44T
Vide Chap.IV, paras.3 and 5,supva.
3 Ibid., paraI.andreferences therein to thCounter-Mernorial.
IV,pp. 328ff.
Ibid.p,.335.268 SOUTH IVEST AFRICA
development. It is not easy to strike a right balance between thetil."
In the political sphere, the solution mhich blason advocates for South
West Africa's special problem is-
". . . a steady preparation of the non-White groups for a share,
perhaps, in a federal system, certainly in one in which al1the grot~ps
could play a part =". (Italics added.)
nas sr nu c ~hGlisants proceed from the so-called "decisive rnajor
premise" that al1 " 'distinctions and differentiations' . . . based upon
membership in a group" are repugnant to Article z, paragraph 2, of the
Mandate" 3, and on this basis advocate "universal adult suffrage . . .
withiii tlie framework of a single territorial unit" ', their attitude is in
clear conflict with the goal set by hfason.
Mason is consequently no authority for the view advanced by Appli-
cants on this aspect of the case; indeed, his approach appears to be an
attempt at softening the obvious disadvantages of the system favoured
by Applicants. Mason goes part of the way with Respondent, by ac-
knowledging that eacAgrotlp should be afforded the opportunity of self-
expression. He differs from Kespondent's approach, however, in tliis
respect, that he would presumably impose a federal system on tlie
inhabitants of the Territory, whereas Respondent envisages the develop-
ment of a free association of separate independent states in which the
various groups could ultimately decide for themselves on the form of
political CO-operationdesired This aspect of the matter is further dealt
with below 6.
39. In the second place, Applicants also contend, relying on the view
of a "Group of Experts" expressed in a report relating to conditions in the
Republic of South Africa, that "[pjartition would not solve, but wotild
intensify and aggravate racial conflict" 7.This contention is also bouiid
up with the wider aspect of Kespondent's separate developmeiit policy 11s
such. It has already been esplained in detail why it is Respondent's ficin
conviction that its policy, including as it does the principle of allocating
separate areas to the different population groups, is the only realistic
method by which the conflicts between such different ethnic groups, so
manifest elsewhere in the world, can be avoided a. Applicants have not
advanced any evidence in support of the contrary contention contained
in the aforesaid report of the "Group of Experts" ;nor does the report
itself even presume to analyse or to controvert Respondent's motivation
of its policy. There is accordingly no need for Kespondent to deal further
with this aspect of Applicants' cornplaint against the principle of separri-
tion as such.
40. In the third place, Applicants complain tltat, contrary to tlie
principie "that an essential prerequisite of a valid and viable political
system is consent of the governed", Respondent's policy "ispredeter-
' IV,p. 336.Thepositio nfthe Segro in Xrnericrin Societymore fully rcferred
toIster inthisRejoinder, Chap. XI.infra.
Ibid., p. 337.
Ibid.,p.440,
+ Ibid.p.. 441.
Vide Chap. IV, para.6 (i), supra.
Vide paras.42-44. inJra.
IV,p. 319.
Chaps. III and IV,supra. REJOISDER OF SOUTH AFRICA 269
mined and the method of its application is pre-fabricatcd" 1.In this con-
nection the extract from the Report of the United Nations Special Corn-
rnittee reproduced in Annex 3 of the Reply contains the allegation, with
reference to the Republic, that "the 'Bantuçtanç' were not demanded by
African leaders, but were imposed against their wishes" ', while Philip
Mason sayç that in South Africa the solution of partition "is being im-
posed by one party" '.
41. Applicants' insistence that the consent of al1groups in South Grest
Africa must be obtained as a prerequisite to partition is unrealistic,and
proceeds frorn fallacious premises. It loses sightof the basic fact of the
situation, whieh is that the relationship between Kespondent and the
inhabitants of the Territory iç that of a guardian towards its wards, a
relationship which arose bccause of the latter's need of guardianship
and upliftment. It is inherent in that relationship that the guardian must
be able, in its discretion, to deterniine the bcst methods by which the
welfare of al1 the wards could be promoted to the utmost. Applicants'
contention presupposes, however. that, while the relationship of guardian
vis-à-vis wards still subsists, the wards must be given the opportuniiy of
nullifying the policy conceived by the guardian, alter careïul considera;
tion, as being themost beneficialin the circumstances. Indeed.Applicants
contention, taken to its logical outcome, goes much further: it is tanta-
rnount to a demand that a particular section of the inhabitants rnust be
rifforded the opportunity, simply by virtue of their superior numbers, of
clioosing not only emancipation and control of their own affairs, but also
controlover the other smallergroups in the Territoryand their affairs and
possessions-including control over the most advanced group, which has
been largely instrumental in developing the lar er groups to the stage
where they are capable of controlling their own a airs. With reference to
the Kepublic, Applicants' contention involves the clairn that the wards
must even be able to demand control over the guardian's own affairs and
possessions. Such a claim, liespondent çubmitç, demonstrates the fallacy
underlying Applicants' complaint. It is surely inherent in the situation
that the guardian must be erititled to say to each group of its wards:
you may rule yourselves in your part of the land, but you rnay not rulc
the other groups in their territories-at least not without their consent.
42. Applicants' argument furthermore ignores two important features
of the factual situation in South West Africa.
'I'hefirst is that historically the various ethnic groups in the Territory
have always to a large extent occupied separate parts of the country.
Respondent's policy, therefore, accepts an esisting state of affairs, and
seeks to further the development of the various groups on that basis.
By contrast,the policy of integration of the groups,advocated by Appll-
cniits, would effect a major change in conditions in the-'rerritory.
SecondIy, while alteging that Kespondent's policy lacks the "consent
of the governed", Applicants conveniently ignore the fact that their own
favoured policy of intcgration sufiers from precisely the same defect.
Therc can be no doubt that the White group is oppoçed to integration
1 IV,p. 320; vidalso p. 325.
Ibid.pp. 349ff.
Ibid.. p. 357 (para. 147).
' Ibid., p.331.270 SOUTH WEST AFRTCA
and that a poIicy of integration would have to be enforced against
White resistance. The attitudes of the Native groups in this connection
are dealt with hereinafter 2. Sirnilarly, a federal system, such as that
suggested by Philip Maçon 3,could only be established by forcing it on to
objecting groups.
In so far as the "consent of the governed" is concerned, therefore,
Applicants' theories for the political development of the Territory do not
disclose any virtue that isallegedly lacking in Respondent's policy.
The above-mentioned twofoLd fallacy of Applicants' approach is de-
monstrated by the followingestract from a speechof the Prime Minister in
the House of Assembly during the discussio ofnthe Odendaal Com-
mission's report :
"1 have already referred to that, right at the outset, but now
wish to state in more detail that what the report suggests is not to
introduce apartheid ta South West Africa but to take into considera-
tion the historical facts of South West Africa. They are that there
have always been inSouth West Africa quite separatc ethnic groups,
groups which in the course of history often clashed with one another.
. Therefore one would not be forcing them apart now if you were to
continue the development of each group's territory. One should
indeed rather not allow oneself to force together those who never did
belong together. There is no question of extending apartheid to
South West Africa, there is no forcing apart of groups. What is sug-
gested is to refrain frorn forcing together, against the whole trend of
their history, peoples who are separate. Therefore 1wish to emphasize
that the basic idea with whicli we are dealing is not the creation
of homelands. It is the preserving of homelands. In some cases these
homelands have already almost fallen apart. There it is a question
of taking the kernel which still esists and, by an estension of ter-
ritory and by bringing scattered groups together, with their CO-
operation (those who beIong together), to re-establish the valyd
former conditions that they have always known about and contin-
ually have askedfor. 1,as a former Ninister of Bantu Affairs, can state
categorically that 1 visited each of these various groups and have
always been asked for the further proper development of their own
ethnic groups and areas 4."
43. In the preceding two paragraphs Respondent, mcrely [or the sake
of demonstrating the fallacies underlping Applicants' argument, dealt
therewith on principle, i.e., independently of the factual allegation
involved therein, viz., that the policy of separate developrnent is being
imposed against the wishes of the non-White groups. In fact, however,
that contention is incorrect with respect both to South West Africa and
to the RepubIic itself. Sincc the factual aspect of the alleged lack of
consent to partition is bound up with Applicants' more general charge
that Respondent has faiIed to consult with the non-White groupsor to pay
Sot only in South \\resAfrica, but also in the Republic, Vidthe Report of
the Tomlinson Commission, U.G. Grl1g55. Chap. 2, y. IO (para. 55); Chap.25.
pp. 103-015 (paras 0 and 28).
Vide paras67-84, inlra.
' IV, p.337; videfurther para. 38, supra.
U. ofS.A. Parl. Deb.. HouseO/AsseiiablyWeekly Edition, So. 15 (4 JIay to
8 Jray 1964).Cols.5452 and 5453. REJOINDER OF SOUTH AFRICA z7r
any attention to their wishes, it will be more convenient to deal with this
aspect of the matter separately at a later stage of this Rejoinder l.
44. The desirability of allowing different groups to develop tomaturity
separately, rather than forcing them to integrate, is reflected iii the
following comment on the situation in African States:
"With the sudden end of empire, too much may be attempted too
liastily. This applies as much to federation-making as to anything
else. In the last resort, there is n lof tbe said for theview that olaly
free fieoplcscnnreally debatethe issue of a federation on its merits. This
was the way the classical federations were formed. The whole
experimerit incolonial iederation-building is a colossal garnble in the
çense that, with the best of motives, the colonial power may be
wanlirzg to join together the wrongpeoples. As an interested third
Party, it has powers of persuasion, direction, control or even force
at its disposal. 13ut tempting as it rnay be to use such powers, as
indeed tliey have been used in Central Africa, they can $tever in
themselvesget people lo live togetherwho have lzodesire tulive together.
Nationalism today is a heady and captivating doctrine, no matter
how small or poor the nation may be. It is no good talking about
the virtues of the economies of scale to 'nationalists' whose political
horizons are still bounded by those of the tribe. Colonial empires in
Africa may have to be balkanized belore their peoples-bath African
and Eurofjean-can discover for themselveswith which oj their neigh-
6ot~rs1he))canatfordto form closeand congelaialpolitical associatior~s2."
Respondent cannot ignore, as Applicants do, the absence of consent
on the part of al1 the groups in South West Africa to merge into one
integrated society. In the restilt Respondent is obliged to proceed with
the policy which recognizes the separate identities of the groups with
their separate homelands as the basic pattern within which progress and
development miist take place. In their own areas the groups are free to
move towards the type of self-government they desire for their homelands,
and eventually to make those homelands entirely independent states
in which tliey can adopt whatever policies they choose, whether in regard
to the form of CO-operation with other states, or otherwise. Thus, the
Prime hlinistcr explained during the debate on the Odcnciaal Commission
report in the House of Assernbly:
"Then 1 come to a second point as far as Government policy is
concerned. As 1have already indicated, the picture painted here by
the United Party of a compulsory çhifting of population groups !S
a falseone. These homelands will in fact be made available for thetr
own political development. There will be more and more opportuni-
ties for them to occupy higher posts in their own homelaiids . ..
They will also have the right of self-determination. These are the
demands which are being made by the oütside world. The autside
world demands emancipation, better opportunities and the right of
self-determination; the trustee is expected to look afterthe nation
under its care until it reaches that stage, and eventuaiil there
must he no domination of one group by another. Inherentl- the
l Vide paras.67-84, i.~/ra.
Carnell, I'. "I'olitical ImplicationsFederalism inXeiv States".Fedcralism
aiidEconoitaicGrowth irzUnderdeveloped Counfries. X Symposium (igGr), p.59.272 ÇOIJTH WEST AFKICA
solution that we put forward satisfies al1those demands which have
been formulated in the council chambers of the world.
Further, we have adopted the standpoint that there must be
economic CO-operation, brit in addition we make provision in our
policy for the possibility of political CO-operation. However, we do
not seek this by means of a federation in which there wili be a
dominant group and in which a majority group will rule a minority
group. Our principle is that in the highest body there should be a
consultative body, that for political CO-operation with one another
tliere must he consultation in regard to common interests on an
equal footing, as in a commonwealth. Therefore there is inlierent in
our policy the principle of developing the possibility for economic
CO-operationand the possibility for political CO-operation,iri accord-
ance with what is being attempted in present-day Europe. After
Iiaving said al1 this, it must he clear that this is not an inflexible
policy. In fact, it is a policy which indicates a direction and for-
mulates certain basic principles which allow much scope for move-
ment . . .1 therefore lay it down as a principle that we envisage the
eventual right of self-determination for each of the smaller and larger
social groups in South iVest Africa. Secondly, we offer protection
for every group in tlieir development towards the highest functions
within each group, including self-administration in al\ spheres. The
report proves this very clearly, and the education envisaged is
directed towards that object. Thirdly . .. the limitations imposed on
the freedoms of people (as we find praçtically over the whole world
where anybody Iives in the territory of somebody else) fa11 away
as soon as everybody can enjoy his oïvn freedom in his own terri-
tory ... Human rights will have more opportunity to develop to the
full in tems of Our policy when separation takes place and the
nations exist aIongside each other ...
45. Respondent turns next to Applicants' fourth ground of cornplaint
against the proposed partition of the Territory. They allege unfairness,
quantitatively and qualitatively, in the proposed allocation of land.
Theydo tliis in the first placebu representing the division of Iand as being
one under which 70 per cent. of the Territory is reserved for Whites
and by alleging that " 'non-White' inhabitants are confined to the poorest
areas of the Territory" 3and that the area set aside for Whites "contains
most of the wealth ofthe Territory and a highly developed economy" '.
They also refer to the position in South Africa, alleging a "manifestly
false equivalence of its asserted balancing of rights and interests as be-
tween 'Natives' and 'Whites' in South Africa as well as in theTerritory" 5.
ilrith reference to South Africa, blason furthermore alleges that the
proposed division of land is unfair, quantitatively and qualitatively G,
and the allegation of unfairness is also contained in the estract from the
l U. ofS.A.Parl. Deb., HouseofAssewzlil\Ireekly Editio(4May to 8 IIay1964).
Cols.jfi4oand 5641.
Vide para.4, supïa.
IV, p. 464.
Ibid..p. 467.
* Ibid. p. 317.
Ibid. pp. 331-332 fothe details ohis charge. REJOISDER OF SOUTH AFRICA 273
Report of the United Nations Special Cornmittee contained in Annex 3
to the Keply l.
46. Respondent haç already demonstrated that Applicants' ailegation
that 70 per cent. of the land of the Territory is rcserved for White occu-
pation is untrue 2.I3ut Applicants' allegation of unfüirness contains a
further major distortion in respect of both South Africa and South West
Africa. By rnerely comparing land areas, Applicants assume the homo-
geneity of the natiiral potential of al1 the land areas concerned. This
assumption is falsc, and the impression sought to be conveyed bv Appli-
cants of non-\Vhites being unfairly treated is accordingly equallj. false.
In order to demonstrate this, Respondent will first refer briefiy to the
position in the Republic and thereafter deal with the position in South
West Africa.
47. In regard to South Africa, Applicants have ignored the significant
differences in the natural resonrce endowment of the respective areaç.
An indication of the importance of this factor is contained in the following
comment of L. E. Veame:
"The Natives cornplain that the Reserves are too small and point
out that together with the 'released areas' they arnount to only
13 per cent. of the surface of the Union while the Whites are left
wlth 87 per cent.
But the Keserves are chiefly in what are cafled the 'productive
areas' where the rainfall ranges from 15 to 40 inches a year, whiIe
much of the land left for the IVhites falls in country with a very
low rainfall.
........................
Visitors to the Reserves deplore the evidence of soi1erosion, the
destruction of the vegetal covering and the conçequent impoverish-
ment of the inhabitants. But the deterioration isnot due simply to
overcrowding. The Reserves are what the Natives have made them.
Were they doubled or trebled in size they would, under present
methods of cultivation, sink tothe level of the areas now occupied 3."
48. Since the fairness of the division of land in the I'Cepublicof South
Africa is not in issue in these proceedings, Respondent does not propose to
give a systematic exposition of such division. Respondent will rnerely
mention some figures and quote some comment5 to illustrate that
Applicants have failed to substantiate their charge of unfairness.
As far as the agricultural potential of the different areas of land is con-
cerned, an arithmetical cornparison of the acreage held by iVhites and
non-\iThites is quite unrealistic. The Bantu reserves have a much higher
agricultural potential per unit of area than the \irhite farming areas ';
in fact, they are situated in the agricuitural heart of Soiith Africa For
esample: ~vhile j6.6 per cent. of White farming land lies within the
regions suited only for extensive cattle and sheep fanning, only 37.6 per
cent. of the Bantu areas lies within the extensive cattle farming area and
there is no Rantu land in the extensive sheep farming region; while 23.8
per cent. of the 13antu areas falls ivithin an agro-economic region with a
* VidePpara. 4.supra.
3 Neame, t.E.. lYhitcMan's Africa (1953). pp. 44-and 4G.
U.G. 61-1955,p. 117 (para. 41).
Seame, op.ci!.,quoting the 1936 Native =IgairsCon~tnissionReport. p43.274 SOUTH IVICSTAFRICA
higli cropping potential, only4.9 per cent. ofthe \Vhite areas falls within
the same region l. In this regard Paul Giniewski states:
"A large part of the aiea is situated in the warmest and most
fertilepart of the Republic and has the highest rainfall. Seventy-six
per cent. of theçe Bantustans receive more than 20 inches of rain
a pear. The remaining 24 per cent. receive more tlian Ij inches. Of
the whole of South Africa, 22.7 million acres have an arid climate
and only 211,000 acres of the Bantu lands fa11in this category.
A rainy, temperate climate is considered to be most propitious for
farming. Of the 24 million acres in the whole of the Kepublic
benefiting from this cljmate,12 million are situated in the Reserves.
The experts consider that, on an average, IOO acres of the Bantu
lands have a similar agriculturnl flofentiuas 147 acres of the White
holdings, that these lands, utilizcd properly, could consequently be
one-and-a-half times as productive as the White lands 2."
49. In connection with the aforegoing comment, and inorder to vielr.
the quantitative aspect of the division of land in the Republic in proper
perspective, it may be useful to draw some comparisons with Iand areas
and population figures in European countries. The Transkei covers an
area of 13,975 sq. "les, which is about So per cent. of the area of
Denmark (16,619 sq. miles) ; in 1960, the population of the Transkei was
1,379,000 as against 4,585,0 n0Denmark. In Natal, the areas set aside
for Bantu cover 13,995 sq. miles, and in 1960 were inhabited by about
1,174,ooo people; these areas are larger than the area of the Netherlands,
with a population in 1962 of about 11.7 million (total area 12,616 sq.
miles).The total surface of the Bantu areas covers about 53,685 sq. miles,
whicli is about one-quarter the size of France (212,822 sq. miles)in 1960,
the total Bantu population of al1 I3antu areas numbered 4,069,00 as,
comparecl with the 1962 population in France of approximately 46.3
million. In 1960 the population deiisity of a11the Rantu areas in the
IZepublic was 78 persons per square mile (Transkei, 105; Natal Rantu
areas. 103; Tswana Bantu areas, 31).This may be compared with the
corresponding figures in the follo~ving countries: Netherlands, 929.1 ;
West Cermany (excluding West Berlin), 586.7; Italy, 431.9; Denmark,
275.9; France, 217.6 3.
50. In regard to minera1 potential, it is not true to sav that the Bantu
areas "have feiv known minera1 resources" 4. It istrue that gold and
diamonds, which are the mainstay of Respondent's mining industry jn
the Kepublic, have not so far been discovered on a significant scale In
Uantu areas; but it sliould be remembered that the areas where these
rninerals are at present being mined were not inhabited by non-\i7hites at
the time of the original discoveries. The process of exploring the mineral
resources of the present Uantu areaç haç by no means been completed
yet, but already minera1 deposits of considerable \valueand diversity have
been discovered or are already heing mined. Obviously no detaiied survey
can be given Iiere; a fexvesamples iviii suffice. A rich platinuni reef falls
' U.G. 61-1955, p. 117(para. 40).
Giniewski, P., Baiztusla:A Trek towards the Future([go[),pp. 12o-tZI.
Al1data on overseascountries taken frnm inforozation Please: Rlmanac Atlas
information.d rgdq,at pp. 615 and 676 ff.South Africnn data: Departmental
* IV,p. 357 (para.150). REJOISDEK OF SOUTH AFRICA 275
largely within the North-Eastern Transvaal Bantu areas; in the samearea
there is a phenomenal quantity of titaniferous magnetite (estimated to
exceed 2,000 million tons),and plans for a steel-works based thereon are
under consideration; a large part of the central Transvaal chromite
deposits, believed to be the largest in the world, falls within Bantu areaç;
large portions of the Cape Crocidolite (asbestos) field fa11within the
Tswana Bantu areas, where therc are also coal deposits estimated at a
little under 1,000 million short tons. In 1952 the value of sales of al1
minerals mined in Bantu areas already amounted to Kg.45 million l.
51. In regard to industrial potential, Respondent disputes Maçon's
statement that the Bantu homelands in the Republic are "badly placed
for industrial development" 2.Again some exaniples \vil1suffice. So, for
instance,it iç widely accepted that the Tugela Rasin, wvithits large Hantu
areas, is one of the principal regions of the Kepublic's future industrial
growth; it is endowecl rvith ample watcr supplies, nlell served by the
power network of the Electricity Supply Con~mission,and it lies in tlie
vicinity of the Kepublic's largest coal mines, as well as being one of its
forernost agricultiiral and forest areas. Sirnilarly, the rich rvater reçources
of tlie Transkei present great possibilities of industialization 3. Large-
scale afforestation schemes and the introdiiction of new agricultural crops,
especially fibres, are laying the foundation for a large nurnber of pro-
cessini; and manufaeturing plants, which, in tiirii, willstimulate further
developments in auxiliary industries and services, while the creation
of urhan areas in the homelands will iricreasiiigly bring in their train
service andtrade establishments '.In Bantu areas Bantu already own 135
grain mills, 42 bakeries, 28 other manufactriring or processing enterprises,
2,375 general dealers' shops, 503butcheries, 566 calés and restaurants,
and 465 other commercial enterprises, and it is clear that thece numbers
are bound to rise considerably in the near future, bearing in mind the
credit and educational facilities provided by Respondent.
52. The Bantu lnvestment Corporation, referred to in Annes 3 of
Applicants' Reply 5,has sufficient funds to meet the demands of the Bantu
in their own areas, and substantial progress has been made to assist the
Bantu in building up their own commercial and industrial enterprises.
Already the Corporation has given financial aid in about 740 cases for
the furthering of the interests of traders and small industrialists; direct
hiisiness Ioans have nmounted to K1,465,ooo and some 250 Rantu traders
have been assisted to acquire stock-in-trade on a credit basis £romwhole-
sale concerns controlled by the Corporation. In addition, businessmen
who have received financial aid are visited regularly by officers of the
Corporation in an effort to train them in the proper conduct of their
affairs; non-borrowers are also making considerable use of these facili-
ties free of charge. As the demand forcapital increases, further provision
will be made therefor. Of necessity, on account of the as yet limited
absorptive capacity for capital on the part of the Rantu, their economic
Vide alsoGiniewski. P.,Banlusfans : A Trek lowards theFzrlrrre (rgGrp. 149.
IVi p. 332.
Videalso Fair. T. J. D. and Green, 1,P., "Development ofthe Hantu Home-
lunds", Opti~na, Vol.r2,Xo. r (Mar. ig62).pp. 7-19.
+ Videfurther, as to the industrial potentafthe Bantu homelnnds. Cinieu-ski,
P., Rn~atustans: A Trek towardsthe I:rrluu(1961).pp. 148-151.
IV, p. 358 (para.152).276 SOUTH WEST AFRICA
progress will initially be slow, but IZespondent haç every reason to believe
thrtt, with the educational opportunities provided by it and the ex-
perience gained by the 13antu in the White areas, the tempo of progress
will soon be incrcased, with the result that more and more employment
opportunities wili be crented for the Bantu in their own üreas.
13ecausethe Bantu are unable to respond quickly to the requirements
of economic growth in their own areas, Wliite-controlled industries will
necessarily have ta create opportunities for some time to corne. It is for
this reason thût liespondent has encouraged and concentrated on the
establishment of border industries l,which will in the meantime bring
together IVhite capital and technical knowledge and the labour rc:<ources
of the Hantu, to the mutual advantage of botli. Respondent is averse to
allowing White private perçons to establish industries in Bantu areas l,
as this will only lead in the long run to Whites controlling industry and
commerce in the Bnntu homelaiids, thus preventing the Bantu from
making progress in this spherc, as he u7ould be iaced with the soperior
capital resources and technical ski11and experience of the II'hites. The
protection of the 13antu in their own areas against siiperior cornpetition
is an essential facet ofReçpondent's policy of separate developmerit. The
border industries, moreover, give the maxinium benefit to the Bantu,
in that they are provided with employment opportunities near their
permanent homes-which obviates the need for migrant labour-while
being enabled to gain the experience iiecessary for establishing their own
industries. Thus, the border industries, far from exploiting the Banto for
the benefit of the \irhites, are designed to enable the Bantu to build up
their own industries in their own areas as quickly as possible.
53. Respondent now proceeds to deal with the division of land in
South IVest Africa itself. In this regard, too, Applicants have simply .
disregarded the differences in the natural potential of the various areaç
concerned.
In fact, the areas reserved in South West Africa for the esclusive
occupation of non-Whites are on the whole far more favourably endowed
by nature, and hence offer much greater potentialities, than the areas
to which White settlement is confined. This is conclusi\rely pro\-ed by
the information supplied in the Counter-Memorial 3,as well as b!. further
details which will be more conveniently given later in this Rejoinder '.
For present purposes, Respondent will mention only sorne facts and
figures in ordcr to illustrate tlie fallacy inherent in comparing onl? the
estent of the different areas.
54. As far as agricultural resources are concerned, 70 per cent. of the
total non-White population of Soiith West Africa, and only 20 per cent.
of the White population, are to be found in the most favourable rainfall
region-the only region suitable for dry-land agriculture-while S5 per
VideIV, pli. 357-358(paras .51 and i52).
*The figures quoted in the last sentencof IV, p.358, para. 152,are disputed.
Accordidg to the 195g/igCloindustrial censiis, 55,000 Haritu workers were employed
in private secondary industry in the Bantu homelands and border areas, apart
from a further25,000in the Durban-Pinetown area, whichisalso a border arca. In
the past four years. and mainly in the past year. the development of border areas
hasresulted in the emliloyment of an additional28.000 Rantu in tliese areas.
II, pp 295-293.
'Sec. H, Chap. III, paras. IS-21nfva. RE JOIHUER OF SOUTH AFKICA 277
cent. of the area to ~vliichWhites are confincd falis within the lowest
raiiifall areasl. The area of land in non-White homelands receiving an
annual average rainfall esceeding 500 mm. (the lower limit for marginal
dry-land farming) is nearly two-and-a-half times larger than similar
land in the White farn~larid area l.Similarly, the livestock carrying
capacity of the northern and north-eastern non-White regions on the
whole far exceeds that oi the White region '; these non-IVhite regions are
also in a far more favourable position with respect to seasonal distri-
bution, effectiveness and variability of the rainfall, evaporation, vegeta-
tion, water resources, çropping potential and iorestry reserves l.
5j.Presumably Applicants' charge that the White area of the Territory
"contairis rnost of the wealth of the Territory" rests on the fact that
tlie biilkoftnining operations is conducted in the southern sector. In this
coiinection it should be borne in mind, howetlcr, tliatthe dianiond mines
are situated on unallocated government iand, Apart from this, the situa-
tion of the mines in the southern sector cannot be interpreted as proof
of unfair treatment of the non-\J7hites. Firstly, al1 mineral rights are
veçted in Respondent as the Govemmcnt of the Territory-the owners
of laiid on which rnining is carried on are only entitled to certain owners'
dues, ivhich are of rninor importance. Secondly, in the historical position
esisting in 1920, Respondcnt was obliged to allow the continued esploi-
tatioii of the minesby foreign entrepreneurs wlio had in any event already
obtained vested interests, in order to make the expansion of the economy
possible3. Thirdlp,Respondent has utilized the income derivedfroni min-
ing for the benefit of the Territory as a whole. In this connection, the
necessity of establishing growth points in certain areas, and the esistence
of "a highlp developed economy" 2 in the southern region of the Territory,
are esplained in a later part of this Rejoinder ".
50. The rnanner in which the areas of land occupied by non-Wliites
liave heen extended in tlie past-of wliich details will be supplied later
in this Kejoindcr "-as also Kespondent's attitude in regard to thefurther
eiilargement of these areas by over 50 per cent. as proposed by the
Odendaal Commission 6,prove that Respondent has always been prepared
to estend the non-White areas in accordance with the needs of the
different population groups. Respondent is convinced, bearing in mind
the circun~stances, particularly the productive potential of the different
areas concerned, that the division of land envisaged in the Odendaal
Commission's report is fair and equitable with respect to all the popula-
tion groups in the Territory.
57. Respondent now proceeds to deal with Applicants' fifth and final
groiind of cornplaint ngainst the allocation of land recommended by the
Coiiirnission. Applicants contend that the homelands in the Tcrritory
would be neither "politically viable as 'independent' entities, or other-
\vise", nor "economically viable asentities'interdepe wite~itspond-
Sec. H.Chap. III. paras.18-21,infra.
2 IV, p. 467.
"'ide II, p410.
+ k'idcsec. H, Chap. II, liar16-17. infra.
Ibid. paras. 15-16.
Ibid., paras27-28,278 SOUTH WEST AFRICA
ent, or otherwise" l.hgain, raference is also made to the position of the
Bantu homelands in South Africa 2.
58. Dealing first with the economic aspect, it isnot clear what esactly
Applicants intend to convey by the expression "economically viable",
and whether the reference to the possibility of "interdependence" with
Respondent containç an implied criticism of such a state of affairs.
If Applicants' charge is that the homelands would nof be economicaIIy
ifidependent, then Respondent submits that the charge is meariingless,
since economic independence is to be found nowhere in the world escept
in subsistence economies; al1 countries, whether in the early stages of
development or highly industrialized, are dependent on trade and other
international economic relations.
Respondent's policy in fact envisages a close economic CO-operation
between Respondent and the various future independent liomelaiids 3.
The economic interdependence of these future states with Respondent
would be no different in principle from the economic relationships be-
tween other countries. In other parts of Africa the need of increased
economic CO-operation between different States has been recognizecl 4,
flowing from "the formidable obstacles that make it difficult for tnany
countries to build viable ecoaomies within the strict confines of their
boundaries" 5. Indeed, the non-White areas, both in the Republic and in
South West Africa, may be regarded as being in the evceptionally fortu-
nate position of being interdependent with Kespondent's economy, the
most broadly based and prosperous on the African continent. Even the
High Commission Temtories, which do not constitutionally forin part of
South Africa, enjop this advantage.
If, on the other hand, "viability" is understood in the sense of "the
capacity of an economy to maintain a customary or expected leirel of
income, or to increase it" 6,or the "attainment of a healthful esistençe
and a steadily irnproving quality of life for the people of the territories" ',
then Respondent states that its policy, both in the Republic and in Soutli
R'est Africa, has been and still is one of systematic and vigorous develop-
ment of the Bantu homelands towards economic viability. With regard
to South West Africa, the various methods applied by Respondent iii this
respect have been detailed in the Counter-Memorial As to the Republic,
Kesponderit does not consider that it would be warranted to burden the
record with more detailed information than the brief indications of past
and future development contained in the Coiinter-Xemorial 9,which haive
not been contested hy Applicants.
In general, Respondent statcç that its policy has conformed to the
requirement laid down in the following passage:
' IV. p. 316;videalso p. 325.
Ibid.. pp319, 320 and 349-358.
Vide para. IO.supra.
' Xnnual Report of the Economic Commisçion for Africa to the Econoinic and
SocialCouncil at itsPourth Session (EICS.r4/iTiY). para.265.
I~zdwst~iulG~owth in Africa (E/CN.I~/INR/I/K~V.~), 1963, pp 76-77.
Berg. E.S., in The United States a~dA/riCa,editedby Walter Goldscliniidt(re-
vised eciition. A. Yraeger) (1963).p. izg.
Basutoland, Bcchuanala,zd Pro(ectovute and Swaziland. Report of an Economic
Survey &fission(1960). p.12.
Vide III, pp.1-103.
11.pp. 481-482. REJOIXDER OF SOUTH AFRICA 279
"lt is essential that the utiiization of the rcsources of the Non-
Self-Governing Territories should be in the best interests of their
inhabitants and should lead to the attainment of a maximum
degree of self-reliance and to the establishGent of a sound and
stable economy l."
59. If the rate of progreçs of the Bantu homelands towards economic
viability appears to have been slow, the reason therefor is not a lack of
interest or an ulterior motive on the part of Respondent, but rather the
low absorptive capacity of the Bantu themselves. In this connection itis
relevant to compare the promising prospects of the South African Bantu
homelandswith the following assessment made by an officia1conimission
of enquiry into the future prospects of the three British High~Commiçsion
Territones:
"ive have approached our task with the question whether there
are any development projects which could be çtarted promptly and
carried through within the nest decade or so-projects which ivould
carry each Territory well on the ivayto becoming a viable economic
unit. While unable to specify the tirne likely to be required, we
believe that our rccommendations . .. make the attainment of this
goal a near certainty in the case of Swaziland, a reasonable proba-
bility in the case of the Bechuanaland Protectorate,and a poçsibility
in the case of Basutoland. It should be emphasized, however, that
'viable' does not mcan economically independent, or even in-
dependent of allocations frorn Colonial Developrnent and Welfare
fuhds or other sources; it doeç mean independeh of annual budge-
tary assistance and it implies attainment of a healthful existence
and a steadily irnproving quality of life for the people of the
Territories. In Our conception of this approach to viability we . ..
have not anticipated ... a reversal-for any reason other than
improved economic conditions in the Territorles-f the tendency
for labour to migrate 2."
Go. In regard to the political aspect, it iç also not clear what is meant
by Applicants' assertion that the homelands would not be "viable" politi-
calljr. Applicants have not advanced any factual grounds iri support of
their assertion, except, perhaps, for the contention that al! the inhabitants
of the homelandshave not consented to the partition of the Territory-a
contention which has already been dealt with above 3.
61. In the political sphcre Respondent's policy, both in the Kepublic
and in South West Africa, envisages the development of the Bantu home-
lands to the stage where they are capable of attaining independence with-
in the framework of a free association of states similar to that of a
comrnonwealth. Respondent's policy ensures that the various groups of
the population are enabled first to develop a sense of unity and nstion-
hood, before they are given political independence. It is preciselythose
qualities that have been lacking in several newly independent States in
Africa-with resultant doubts as to their "viability". Respondent's
G.A.,0.R.. TwelflhSess.Suppl. No. 15 (A/3647),II, p.15(para.22).
Basutoland,Bechuatioland Proteclorate and Swaziland. Report an Economic
Survey Mission (1g60),p. 12.
Vzde paras.40-44,supra.280 SOUTH WEST AFRICA
policy furthermore avoids the possibility of the domination of some
groups by others-a phenornenon which has also been manifest in many
of the new African Sta,tes.
Itiç not tme, therefore, as Philip Mason allegeç, that ~espondent'ç
policy is to ensure survival for the White group, or any portion of the
White group-Respondent's policy seeks to ensure the survival of all
groups.
62. Equally unfounded is Mr. Mason's statement that the creation of
Bantu homelands in South Africa is proposed "partly to satisfy a logical
principle and partly to perpetuate White hegernony when White supre-
macy has to go'' 2.The only reasoning onwhich this allegation is based is
to the effect that a consistent application of the principle of creating
separate homelands for different "tribal groups" (to use Mr. Mason's
phrase) would result in a situation whereby Kenya would have to be
divided into 23 states, and Nigeria into more than 100, many of whicli
in both territories would still contain ininoritie2.
The basic faiiacy in the above reasoning lies in elevating a practical
consideration relating to political stability into a universaliy applicable
rule of logic. Respondent does not propound any policy or dogma to the
effect that "Africans of different tribal origins cannot live together" 2.
Whether or not different tribes can live together is a question for determi-
nation in each particular case. For instance, Respondent has every reason
to think that the eight tribes of Ovamboland could develop into a stable
political unit, and even possibly later join up with the five tribes of the
Okavango.
The features which render different human groups either capable or
incapable of peaceful CO-operation within a single state or society, are
many and cornples, and science has not spoken the last word on this
topic. What is clear, however, is that ethnic differences (not tribal ones, as
stated by hlr. Mason) between groups would suggest a strong probability
that many such groups are not so capable. The correctness of this pro-
position has been established by the whole course of hurnan history, and
the high price paid for disregarding it in recent times has been noted 3.
However, even where there exists ethnic differentiation,Respondent does
nol state categorically that different groups "cannot live together". In
some instancesthere may be featurestending towards CO-operationwhich
are stronger than the disruptive forcesinvolved in ethnic difierentiation.
Unless such features are manifest, however, Respondent does not con-
sider it wise or practicable to force different ethnic groups together into
a mixed social or political entity. If, upon reaching a sufficient stage of
development to exercise a mature judgment, some or al1 of the ethnic
groups in South West Africa were to decide to amalgamate, they would
receive Respondent's blessing, but in the absence thereof Respondent
wiIl resist any atternpt at creating a mixed society which Respondent
knows, from experience and historical exarnple, will probably end up in
chaos, bloodshed and disorder,
Mr. Mason refers also to the existence of minorities within the area
of particular "tribal groups" (as he calls them) in Nigeria and Kenya.
The position of minoritieç is, of course, alwaps difficult. One would like
lIV. p.337.
Ibid., p335.
"zde Chap. Ili.supra. to provide self-determination even for smaI1groups, il they are inassimil-
able with the majority in a particular State. ln practice this would,
howcver, in many cases bc impossible. Although miiiority status would
probably be most unpleasant for the members of the group concerned,
the existence of such groups would not necessarily affect the political
stability or effectiveness of the State. The latter would depend not so
much on the existence of a minority, but on its relative sizc, power, re-
sources, allies, relationship tvith the majority, etc., or, in other words, its
political effectiveness.
Applying the above principles to Bigeria ancl Kenya, it becames
apparent that no valid opinion could be expressed aç to the most favour-
able political division in those countrieswithout a careful examination of
the local situation. II is clear that mere tribal or dialectic differences
between sections of the same ethnic proup would not prima fa~it?suggest
any need for separate political institutions, and, as noted above, even
among different ethnic groups cohesive forces may be greater than
dismptive ones. To what extent the systems in Nigeria and Kenya have
indeed made sufficient allowance for the centrifuga1 forces of ethnic
differentiationonly timecan tell. It is nevertheless already clear that both
these States are faced with considerable problems in this regard, and
contain a substantial body of opinion in favour of greater recognition of
ethnic affiliationsl.
F. Consultationswith, and RealWishes of, the NativeGroups
63. Applicants, in various passages of the Keply 5 chargeRespondent
with failure to consult with, or obtain the consent of,the inhabitants of
South Africa and South West Africa before applying a system of home-
lands to these territories. In many of these passages Applicants formulate
and repeat the charge in general terms; in others reference is made to
specific aspects of Respondent's policv, viz., the creation of Bantu
authorities, the establishment of the Transkei Bantustan,the recommen-
dations of the Odendaal Commission, and the endorsement by Respond-
ent of the principles of those recommendations.
Respondent will deal firstly with the general charge and thereaftcr
with the specific aspects mentioned by Applicants.
64. In general, Applicants allege that, contrary to the "principle . . .
that an essential prereqiiisite of a valid and viable political sj~stemis con-
sent of the governed" 3,"Respondent's self-styled policy of 'territorial
apartheid' is predetermined and the method of its application is pre-
fabricated". They charge Respondent with "predetermination to irnple-
ment its policy of aparlheid without consultation, other than of an illusory
and perfunctory nature" '; with "disregard of al1 attempts to achieve
consultation" 5;andthey refer to "[tlhehistory of Respondent's rejection
of consultation" =; "Respondent's policy of rejecting consultation with
l Vide Chap. III, supra.
Ibid., p320;this3passage ha$ already been rcferreto.vide para.40.supro.
IMd. y..320; videalso p. 323.
a Ibid.. p321. I
SOUTH \\'EST AFRICA
the 'Native' electorate" 1; and Respondent's "practice of no-consultation
[sic]inSouth Africa" 2.
65. As has already been indicated 3,Applicants' charge of non-con-
sultation rests on a false premise: it presupposes that Respondent's
homelands policy js directed at changjng an existing state of affairs, by
creating homelands where there had been none before, or by creating a
partition which had previously been non-existent; it suggests by impli-
cation that a fully integrated multi-racial society exists in South Africa
and in South West Africa, in fact; that Respondent's policy seeks to
change such society by dividing itinto separate racial groups and sepa-
rating these groups, and that the consent of these groups must therefore
first be obtained. Applicants' approach to the question of consultation
ignores, and is in conflict with, the actual facts ofthe situation.
HistoricaUy the various ethnic groups inhabiting the Territory to a
large estent always.occupied different and separate areas of land, and
each group retained its own identity.
In South Africa the position is the same. Respondent did not create
homelands for the various groups, nor did Respondent bring about the
fact that through the years each group retained its asvn identity; these
are simply the results of historical development. Thesituation is reAected
in the following cornmeilts by the Tomlinson Commission:
"During the ctiiirse of time the areas which were effecfively
occupied by the Rantu were regarded as reservations for their use
and occupation. . .+Y
"The pattern of land occupation of the races was woven during
the formative period of the history of the settlement of South
Africa . ..5"
"Territorial segregation has been the accepted policy of South
Africa since earliest tirne6."
And it was succinctly descnbed by the Prime hlinister in the follo~ving
rernark in the Houçe of Assembly: ". .. weare not now dividing up South
Africa; history divided it up long ago and we are just accepting the ...
consequences '."
66. Respondent's policy recognizes the factual situation existing in
South Africa and South West Africa; it accepts the separate identity pf
the groupç with their traditional homelands as the basic pattern withi?
which progress and development must take place. For thiç purpose, it 1s
submitted, Reçpondent does not require the consent of the groups.
In su far as Respondent's policg7involves changes inthe existing state
of affairs, i.e., by the extension of the home areas, or the furtherance of
political and other developrnent of the groups within their areas, or the
adaptations required in the political structure of the groups, within the
frameu~ork of the general policy, Respondent has always accepted, and
given effect to, the need to consult with and to obtain the CO-operation
' Vide IV,p. 323.
Ibib.. p.324.
' U.G. 61-1955,p.2,42p(para. 2).
Ibid.p. 46 (para.44).
Ibid., pro~ (para.4).
' R. ofS.A. Paul. Deb., House ofAssemblyV ,oI2 (19G21 C,ol. 89- REJOISDER OF SOUTH AFRICA 283
and consent of the groups concerned, as will be demonstrated below 1.
In those areas of South Africa and South West Africa which are set
aside for occupation by the White group, and in which nurnbers of non-
Whites became settled, it was never contemplated by any group that the
non-White group would acquire political rights within such areas.
Respondent's policy dnes not seek to alter this position, except to the
extent that members of the non-White group are to be afforded the
opportuity of exercising political rights in respect of their homelands.
In fact, it is the policy advocated by Applicants that would seek to
bring about a major change in the existing situation, for Applicants
propagate "the institution of universal adult suffrage . . . within the
framework of a single territorial unit" 2. Such a fundamental change can
obviously not be contemplated without obtaining the consent of al1the
groups concerned. ln particular, the extension of the franchise to non-
Whites within the White areas is inconceivable in the absence of the
consent ofthe Whites themselves. But there is no doubt that it would not
be possible for any governing authority to obtain such consent, either
in South Africa orin South West Africa. Thus, the Tomlinson Commission
reported :
". .. there is a greater determination on the part of the European
to rnaintain his identity ... This determination expresses itself in
resistance to everything leading in the direction of assimilation 3.
That the European people will not be prepared willingly to
sacrifice their right of existence as a separate national and racial
entity must be accepted as a dominent [sic]fact in the South African
situation '.
On the part of the European population there is an unshakeable
resolve to maintain their right of self-determination asa national and
racial entity ... 5"
In regard to support generally given to Respondent's policy of separate
development, attention is invited to what is stated hereinafter 6.
67. Turning now to the particular incidents of non-consultation alleged
by Applicants, the first of these relates to the establishment of Bantu
authorities. Applicants stigmatize as an "untenable ~ontention"~ Res-
pondent's staternent that "the majority of Bantu have welcomed the
creation of. the Bantu-authorities and have afforded Respondent an in-
creasing measure of CO-operation in developing and extending them"
In further proof of the correctness of Respondent's above-quoted
statement, Respondent points out, in the firstplace, that in terms of
existing Iegislation it is impossible for Respondent to establish any Bantu
authority without having first consulted with the Bantu concemed. In
terms of section 2 (1) of Act 68 of 1951 ,consultation with every tribe
and community concerned" is made a prerequisite for the establishment
Vide paras.67-84,infra.
IVi p.441.
I1.G. 61-1955, p.io (para.55) and IV, p.229 (para.55).
' IV. p.103 (para.20).
' Ibid., p105 (para. 28).
Vide Chap. VI. infra.
IV.p. 320,footnote I.
II, p480.284 SOUTH WEST AFRIC.4
of a Bantu tribal authority, while the establishment of a regional or
territorial authority is subject tothe following proviso:
"Provided that no regional or territorial authority shall be
established, except after the hlinister has consulted the natives in
everjr area in respect of which such authority is to be established."
In practice, a procedure fias been adopted whereby Bantu authorities
are established only on the initiative of the groups concerned, i.e., only ori
a request therefor. In fact, no Bantu authorities have ever been estab-
lished except upon special request. In the few instances in which the
establishment of an authority was opposed, the opposition emanated
from small dissident minorities. In this regard Applicants refer to a
statement made by the Minister of Bantu Administration and Develop-
ment in the South African Parliament in 1963 that the Governrnent was
not at that stage planning to grant powers of self-government in an
additional South African areas. As Respondent has indicated, sel-
government for Hantu areasis not amatter that is planned independently
of the wislies of the people concerned; and developments in this regard
must therefore await the initiative of the Uantu people themselves.
68. In regard to the Transkei, Applicants quote an extract from a
statement of the then Chairman of the Territorial Authority of the
Transkei, Chief Kaiser hlatanzima, in which, according to Applicants,
he set out the ground upon which he "defended his support of Respond-
ent 'S proclaimed intention to establish the Transkei 'Bantustan' " '.
In order to view the Chief's rernarks in their proper perspective. reference
must be made to the portions of the statement preceding and following
the quoted extract. For the sake of conirenience, Respondent reproduces
bye Applicantsh:latterpart of the statement, including the passage quoted
"There are two roads leading to freedom, namely (a) by peaceful
means and (2) (sic) by revolution, The people who oppose the attain-
ment of self-government under the proposed TranskeianConstitution
are the protagonists of a revolution on cornmunistic lines. White
South Africa is one hundred per cent agreed on the maintenance of
white control of the white Parliament. Only their defeat on the
battlefield will divest themof this resolution. Will those people who
oppose the peaceful road taken by the Transkei come out and
advocate a revolution? They will not do so. They will only put the
ignorant 13antu with tlieir resounding, meaningless phrases of
'Freedom in our time', 'Inkululeko ..., etc.' into trouble after
collecting al1 the money thcy can get £rom these poor people for
their comfort.
The Transkei people, with the exception of the mental patients
who are easily misled, will not be duped into a situation which
ruin their country. The Whites who advocate a multi racial Parlia-
ment for the Transkei are not sincere. They are hypocrites of ttie
worst kind. They know that if this cheat is accepted by the.l3antu
and (sic) whites will aIways control the affairs of the Transkei under
their old policy of 'time is not ripe1. The Transkei people want to
take control of e17erydepartment of the Transkei state. They want
' IV, p.320. REJOISDER OF SOUTH AFRICA ~~5
to hold esecutive positions in their government in order that they
may direct the economy of their country in the interests of the
Bantu ofthe Transkei; but thismust be done gradually and success-
fully in order to avoid the chaos which characterised the lives ofthe
people in the socalled free African States.The people of the Transkei
wi11not object to their kinsmen doing the same in other Uantu areas
of the Republic. The Transkei people would like to have the mono-
poly of trade in their areas. They would like to own industries and
control their system of education in the same way as whites do in
their own areas. In this way only will the Bantu live peacefully with
their white neighbours. The people of the Transkei are opposed to
white domination. That is why they advocate a division of the
Iand-the only prnctical policy towards the solution of racial confiicts
inthe land l."
Gg. The same Chief, now in his capacity as Chief Minister of the
Transkei Government, subscribed to the policy of separatc development
in the following terms when fie delivered a policy speech to the Transkei
Legislative AssembIy :
"We wholeheartedly endorse the policy of separate development
as being the only policy whereby the different races in South Africa
can live side by side in peace and harmony. For this policy ensures
to each racial (sic) full political rights and the maximum possible
development and progress in his own part of our common father-
land =."
70. Applicants allege further that "Respondent's pre-determination
to create 'homelands' .. . was made manifest, in esplicit terms, long
prior to the events" mentioned in the Reply 3,being the events which
immediately preceded the granting of self-government to the 'I'rançkei 4.
Applicantî' allegation discloses the fallacious assumption which has
already been exposed above, viz. t,at Respondent's policy is to "cveale"
homelands 5. The sources quoted by Applicants in support of their alle-
gation 6do not in factwarrant any such assurnption 7; they rncrely show
that it was the extension of political rights to the Bantu in their euisting
homelands which had long been foreshadowed 7.
In fact, as has been shown in the Counter-Mernorial 8, the initiative
and driving force behind the establishment of self-government in the
Transkei came from the inhabitants of the Territory themselves.
71. Finally, AppIicants relate their charge of non-consultation speci-
fically to the Odendaal Commission report ~nd its endorsement, in
principle, by Respondent 9.They assert that Respondent attaches so
1 Text of statement sent to the Press.
Debales O/ the Transkei Le;islaiivAssernbly. 2nd Sessioiz.PirstAssejnbly. 5
May to ig June 1964. p. 67.
IV, p.324.
* As described inII,pp. 478-479 and referred to in IV, 324.
Vide paras. 42 and 65.supra.
IV, p. 32.1.footnote 3.The person referred to in this footnote in connection
with the programme announcecl in rg5o (Dr. Eiselen) was noamernberof Rcspond-
ent's Government, nor in itsserviceat that time.
Vide II, pp. 464-465.
11,PP. 475-479.
IV.pp. 324-325.286 SOUTH IVEST AFRICA
little significance to consultation with the 'Xatives' in the Territory,
that the Memorandüm nowhere refers to suckconsecltationas having
taken+laceprior to theveleaseof the Commission'sreport or of its endorse-
ment, in firirtciple, by Res$onde?tt". Similarly, it is alleged that "no
mention is made of consultation, either in the terms ofreference of the
Commission, or in the Report of the Commission itself" '.With reference
to an extract from the report,quoted by Applicants =,they allege:
"Apart from attributing recornmendations for establishment of
'territorialapartheid' in the Mandate to a mere 'impression', based
upon undisclosed 'evidence', the Commission does not refer to the
fact-which consultation with the inhabitants would have made
inescapably clear-that the inhabitants would 'prefer' to 'have and
retain residential rights' and 'political say' in the White area ... 3"
Respondent will show that the charge of non-consultation in connection
with the recommendations of the Odendaal Commission is untrue.
Attention will first be given to consultations held by the Commission
itself before it brought outitsreport ;thereafter consultationssubsequent
to the publication ofthe report wiii be dealt with.
72. In support of their avement that no mention is made of consulta-
tion in the terms of reference of the Odendaal Commission, Applicants
refer to an extract from the terms af reference which was quoted in
Respondent's Counter-Memorial4.Respondent submits that it is implicit
in the extract quoted from the terms of reference that the Commission
would consult with the inhabitants of the Territory; without such
consultation the Commission could not have carried out its task "to
enquire thoroughly into" the various matters mentioned in the terms of
reference.
Moreover, it appears from the Commission's full terrns of reference,
reproduced in its report (which Respondent has introduced as a relevant
document in these proceedings) that the Commission was granted the
followingpower :
"And in order that the Commission may be better able to carry
out this Commission. it is granted fuii power and authority to
interrogate at its discretion al1 persons who in its opinion are able
to furnish information on the subjects mentioned in its terms of
reference or on matters relating thereto 6."
73. The Commission in fact made every attempt to consult with and to
pbtain the views of as large a section of the inhabitants as possible. This
is amply proved by the following extracts from the Commission's report:
"2. Procedure.
In carrying out its terms of reference your Comrnission-
(a) held meetings where necessary ;
..... ..................
(d) heard evidence at various centres, geographically so planned as
l IV, p.324 (italicinoriginal, footnotes ornitted).
ibid., pp. 324-325.
Ibid., p.325.
+ II,p.476;IV,p.324,footnote 6.
IV,p. 197(para .).
fiR.P. No.1211964p ,.3 (para.I(iii)). REJOINDER OF SOUTH AFRICA ~~7
to be within reacli of each person, body and authority in South
West Africa . . .
(e) publicized the enquiry by-
(i) notification inGovernmentGazette, Vol. V, Xo. 336 of the
~1st September, 1962, Governrnent Notice No. 1535, in
both officia1languages;
(ii) notification iOficial GazefteExtraordinary of the Adrninis-
tration of South West Alrica, No. 2430 of the arst Sep-
tember, 1962, in Afrikaans, English and Gerrnan;
(iii) notices in the press, both in the liepublicofSouth Africa
and in South West Airica, announcing the terms of re-
ference, as welI as by invitations to persons and bodies to
make relevant contributions;
(iv)furnishing particulars to the inhabitants of the Territory
through the officials concerned where necesçary;
(v) news broadcasts on Radio South Africa.
3. Your Commission did everything in its power to publicize this
matter as widely as possible. Persons and bodies were invited to sub-
mit evidence, either in writing andlor orally, on any matter of any
nature whatsoever which could contribute to the development of
South West Africa and its population. If they so desired, witnesses
were allowed to give evidence in camera before the Commission '."
In regard to paragraph 2 (el (iv) of the report, quoted above, the
particulars were made known to the inhabitants by means of circular
letters which were distributed by officials in thearious Native areas, and
also by oral intimations by such officials to the recognized leaders,
organizations and other individuals in such areas.
In connection with paragraph 2 (d) of the report, quoted above, a list
of the places visited bythecommission is set out elsewhere in the report 2;
from this it is apparent that the whole of the Territory \vas fully covered
and that ample opportunity waç afforded to al1 perçons in the Territory
to attend the meetings and to make representations to the Commission.
74. The Commission succeeded in making widely known its desire to
consult persons and organizations on the matters covered by its terms of
reference. In consequence of the stepç taken to that end, as described
above, a large number of persons and bodies gave oral evidence before
the Commission and/or submitted written memoranda to it. A list of
these persons and bodies is çupplied in the Commission's report 3.By
far the rnajority of them were members of, or represented, the non-White
groups of the Territory. From the said list it would seem that 1,267
representatives of the Bantu groups in the Territory, 346 Nama represen-
tatives, 6 Damara representatives, and 14 Coloured personç, making a
total of 1,63 3on-Whites, appeared and gave evidence before the Com-
mission, while 20 individual Natives and a number of non-White bodies
submitted written mernoranda.
The Commission gave al1 the persons and bodies appeanng before it
every opportunity to air their views. In particular, the Commission by
rneans of questions endeavoured to ascertain the wishes of the various
' R.P. No. 12/1964. p. 3 (parI(iii)).
Ibid.. pp. 53and 535.
IbiJ.pp. 537.539, 54[,543, 545, 547. $and 55r288 SOUTH WEST ;\FRIC;\
groups of the population as to their further development. As will appear
from statements in its report, the Commission, in formulating many of
its recomrnendations,gave due consideration to the representations made
to it on behalf of the various groups.
Apart from the Bushmen, there were only two groups whose meiiiberç
failed to make ans representations to the Cornmissioii. These were the
Herero in the Police Zone and the Rehoboth Basters, numbering 35,334
and 11,257 respectively. But it was certainly not the fault of the Com-
mission that thejr did not appear before it. They were in fact specially
invited to meet the Commission, but declined the invitation.
75. In their above-quoted comment 1 on the report of the Cornmissioii,
Applicants refer to the fact that the evidence mentioned in the report
was "undisclosed". The Commission decided to treat al1 the evidence
given before it as confidential. Tlie fact that the evidence was not pub-
lisliecldoes not, of course, in anjr way detract from the Conimission's
statement that its impression was supported by the eviderice.
By tfie tenor of their reference to "a mere 'irnpreçsion', based iipoii
undisclosed 'evidence' ", Applicants, however, imply that thcre was in
fact no evidence to support the Commissioil's recommendations. Re-
spondent deprecates the suggestion of dishonesty on the part of the
members of the Commission, particularlv in view of the fact that Appli-
cants have made no attempt to substantiate their suggestion. The
members of the Commission are well-known men of high standing and
citegrity, and liespondent proposes to treat the suggestion with the
nontempt it deserves.
76. Applicants have not adduced any proof of the alleged "fact" that
"the inhabitants would 'prefer' to 'have and retain residential rights' anil
'political sny' in the White area" j. Their statement of the "fact"
amounts to no more than conjecture asto what views wouid have been
advanced by the inhahitants. had they been consulted, based on the false
premise that they were not consulted. 11s Respondent has shown, the
Conlmission in fact did consuit the inhabitants, and its findings were
based on the evidence received by it.
77, Although it is correct that Kespondent's Memorandurn ' does not
refcr to "consultation as having taken place prior to the release of the
Commission's Report or of its endorsement, in principle, by Respoiid-
ent" 5,Respoiiclent denies the inference which hpplicants seek to draw
therefrom, viz., that "Respondent attaches so little significance to con-
sultation with thc 'Natives' in the Territ---"- - The incorrectness of
hpplicants' assertion will be demonçtrated 6 a brief reference, in the
following paragraphs, to the consultations which were in fact held
' Vide para. 7r.supra.
It may be noted that the report was drawn up in Afrikaans, and thnt the
English version of the extract from the Commission's report quoted in IV, pp.
324-325i,s not an exact translation of theAfrikaatext.In the Afrikaans text the
phrase used is"beslionder die indruk gekom, gestaaf deur getuienis". the equival-
ent of which, in the English language. is "formed tdefinite (or cleimpression,
supported by evidence".
'IV,p. 325.
+Ibid..pp. 201-217.
Ibid. p.324. REJOlSVEH OF SOUTH AFRICA ~~9
after the Report of the Odendaal Commission hnd bcen drawn up.
, 78. Shortly after the report of the Commission had been tabled in
Pnrliainent, the Minister of Bantu Administration and Development
visited South West Africa and held meetings with the different Native
groups in the Territory. Eetween 18 and 25 Febrtiarv 1964 the Minister
addressed meetings at Runtu, Ondangua, Ohanguena, Ongancljera,
Ohopoho, Okombahe and Okakarara. The fact that the meetings would
be held and the purpose thereof had been made known as widely as
possible in advance to the various groups by the officiaisstationed in
Ovamboland, the Okavaiigo and the Kaokoveld, and also amongst the
llnrnara and Herero groups.
At cach of these meetings the Minister explained the most important
recommendations of the Commission reIating to the particular area. He
described the area of land which the Commissio~irecommended should
be set aside as a homeland for the group concerned, and detailed the
Commission's proposais for such homeland with regard to the creation
of legislative councils,secutive committees, comrnunity authonties, and
courts, the institution of citizenship and the franchise, the extension of
health services, the expansion of educational facilities, the improvement
of agricultural methods, economic development, and so forth. At each
meeting the Minister presented copies of the Commission's report tothe
leaders of the groups attending the meetings to enable them to studythe
contents and to convey information to their followers, and at every
meeting the leaders and mcmbers of the groups attending were en-
couragecl to put questions to the Minister, andto expresstheir attitudes.
These consultations took the form of meetings, which is the traditional
method of cornmunicating or dealing with the Native groups and tribes,
and it has been in vogue since the inception of the Mandate. In this
regard Respondent finds it apposite to quote the folloming remarks of
Ceneral Smuts in his statement to the Fourth Conimittee of the United
Nations General Assembly on 4 November 1946:
"The wishes of the Natives were expressed in an equally demo-
cratic but rather different form, having regard to their differing
tribal customs. The Cornmittee will appreciate that in the less
advanced communities such as comprise the Natives of South West
ACrica,the tribe is the recognized political unit. It provides in efiect
tlie whole basis of administration and government. Any form of
consultation therefore which did not have propcr re~ard to Native
tribal customs and susceptibilitieç, which was not in accord with
tlieform in which the Natives are consulted in the course of normal
administratioii and government by their chiefs and councils, mould
not have resulted in a valid or free expression of their wishes. Hence
it u70uld be mistaken to regard the consultation which was carried
out asa referetidum of individuals. Such a notion is entirely alien to
tlie mind of the tribal native. Kathcr was it a consultation of the
wishes of tribal units, the views of the individuals heing ascertained
by the tribal authority in the recognized traditional and customary
fashion l."
lGouernriteniWhitePrapsr,containingthe Documents relliting to the considera-
tionby the Cnited Sations Ceneral Assembly atthe2nd l'artof its1stSession on
thequestion of the future status of South Webfnca, p. 33.z9° SOUTH EVESTAFRlC.4
79. hl1 the meetings addressed by the Rlinister, referred to above, were
nrellattended hy mernbers of al1the groups, uith the exception of the
meeting at Okakarara (Waterbcrg Reserve), where not many Herero were
present. The minority section, which was represented, expressed its
agreement with the Commission's recommendations relating to the
Herero. At Runtu (Okavango territory), Ondangua and Ohanguena
(both Ovamboland), spokesmen of the groups expressed their agreement
with the recommendations of the Conlmission as explained to them by the
Minister. At Ongandjera (Ovamboland)one speaker raised objections to
the Commission's recommendations, but the reaction of the leaders and
the people present was generally very favourable to the Commission's
recommendations. At Ohopoho (Kaokoveld) the reaction of the audi-
ence {vas neutrai, the attitude of the Iieadmen being that the!, could
not speak ifHosea Kutako had not spoken. At Okornbahe three of the
Damara leaders expressed agreement with the recommendations, while
one, who was supported by only a srnall section of the gathering,
opposed them.
Thus, excepting the meeting in the Kaokoveld, and except for the
majority of the Herero group in the Police Zone (who refused to attend
the consultations), the reaction of al1 the Native leaders, i.e., the Chiefs
and Headmen who were consulted, and the majority of their followers,
was oi7envhelmingly in favour of the Commission's recommendations.
80. Consultations were also held with the other non-White groups in
the Temtory. On 17 and 18 February 1964 the itlinister of Coloured
Affairs addressed meetings of the Coloured people at Windhoek, of the
Rehoboth Basters at Rehoboth, and of the Nama people at Tses and
Karasburg. At each meeting the appropriate recornmendations of the
Commission were explained and a copy of the report handed to the
representatives of the people present. The Coloured group enthusiasti-
cally supported the recommendations, but small minorities of the Nama
and Damara, and the majority of the Rehoboth Basters, were opposed to
thern.
During March 1964a meeting was held with the Bushmen at Tsumkwe,
in the proposed Bushrnanland, at which the Comniissioner-Genera1 for
the Native population of South \Vest Africa explained the appropriate
recommendations of the Commission.
81. The Deputy Minister of Bantu Administration and Development
addressed meetings of the Location Advisory Boards of Walvis 13ay and
Windhoek on 21 and 22 February 1964, at which meetings the recom-
mendations of the Commission were summarized, with special reference
to the proposed homelands for each population group and the recom-
mendations regarding Natives in the urban areas. Each Advisory Board
was handed a copy of the report, and questions were asked and answered.
The Board mernhers intimated that they could not accept or reject the
report on behalf of their peuple but said that the!.tvould inform their
people of the contents and implications thereof.
82. The Prime Minister addressed a large gathering of the White
inhabitants of the Territory-sorne non-Whites were also present-at
If'indhoek on 15 Febniary 1964.He explained in detail the main recom-
mendations of the report. Subsequently, the Legislative Assembly of
South West Africa resolved unanimously to adopt the Conimission's
report and to approve of the decisions of the Government as contained HEJOIBDER OF SOUTH AFRICA qr
in the 3lemorandum in connection with the Commission's recomrnenda-
tions '.
S3. Alore recently, further consultations have been held with the non-
\Vhite groups in the Territory.
During October 1964 the Commissioner-General lor South \Vest Africa
acidressed well-attended meetings of al1the Ovambo tribes in their own
areas. He referred to the main recommendations of the Odendaal Com-
mission and fully explained Respondent's decisions as contained in its
Memorandum. At al1 the gatherings, after the Commissioner-General
had spoken, representatives of the tribes expressed their sincere thanks
for the measures already taken to irnplement the Commission's recom-
mendations and asked that the remaining recommendations should be
carried out as quickly as possible.
Later, the whole Ovambo nation through its tribal leaders submitted
a written petition to the Prime Minister requesting, ifltedia, the imple-
mentation of the Commissionls recommendations, and particularly the
recommendation relating to the creation of a central governing body for
Ovamboland 2.
In the Okavango territory, the Bantu Affairs Commissioiier held
meetings during September 1964 with al1the tribes in their own areas.
The meetings were well attended and a keen interest was displayed inthe
discussion of the recommendations of the Commission relating to the
Okavango tcrritory and Respondent's decisionsthereon. The Okavango
people were pleased with what had aiready been done to give effect to
some of the proposals and expressed the hope that the remaining recom-
mendations would be implemented without dela-.
The Administrative Officer in charge of the Kaokoveld also presided at
similar meetings in that area. Al1 those present at the said meetings de-
clared themselves in favour of the recommendations of the Conirnission,
especially the proposa1 that a homeland should be recognized for each
group.
In the Police Zone further stepshave been taken to acquaint the non-
Whites in the reserves and in the urban locations with the Commission's
proposals and Ilespondent's decisions thereon. With the exception of
members of the Herero and Rehoboth Baster groups, who have adopted
an attitude of aloofness towardç anything connected with the Odendaal
Commission, the information has been received wjth great interest.
Many requests have been received that the recommendations should be
implemented as soon as possible, and CO-operation in carrying out this
task has been promised.
84. In the premiseç aforestated Kespondent denieç Applicants' various
allegations regarding lack of consultation with the inhabitants of South
Africa and South West Africa.
G. Applicants' Allegationsregarding"Fostering" of Tribalism
55. Throughout the Reply Applicants repeatedly refer to ïvhat they
IV,pp.201-217,
* Vidg I'etitiontthe Honourable Dr. H. F. Verwoerddated 24 October 1964
from Chiefsand Hcadmen of Ovamboland. 29z SOUTH WEST AFRECA
term Respondent's "policy of fosterin~ [the] differences" l between the
various population groups in South \test Africa and of "encourag[ing]
separateness among the 'groups' " 2.At tirnes this policy is also described
as one of "encouraging" or "fostering tribalism" '.
This alleged policy, as well as the measures which are allegedly npplied
in irnplementation thereof, is not onlv repeatedly criticized in the RepIy,
but Applicants also venture to comment that "Respondent .. . stops
short of an attempt to justify its ... policy of fostering such differences"
The charge is a strange one, for nowhere in the Counter-hiemorial did
Respondent say, or in any way intend to suggeçt, that its policy invol~ted
the fostering of differences.Respondent admittedly stated that its policy
was based on the existenceof differences between the various population
groups, differences which were of such magnitude and permanence that
Respondent ti-iought itnecessary that its policy should have due regard
thereto. Respondent also dealt with the wishes of the different RrOUpSin
this regard, and with what it considered to be the advantages of risystem
of differentiation and separate developrnent. Thefact that liespondent in
framing its policies gives due consideration to the existence of material
differences hetwecn the population groups is,however, no justification for
a charge that Respondent fosters such differences.
86. It would appear, however, that Applicants' cornplaints in the
present context are founded on the premise that any differentiation on
the basis of membership in agroup, class or tribe is violative of Respond-
ent's obligations under the Mandate and cannot be justified in law.
Thus they statc generally that Respondent's "policy of fosterin tpe"
differences between the various population groups are "precisely [the]
aspect, internlia, of Respondent's conduct toward the inhabitants of the
Territory upon wliich Applicants ground Submissions 3 and 4" 6.
And with regard to particular aspects of government, Applicantsmake
allegations which can only be consistent with a proposition that the
Mandate did not permit the fostering of tribal institutions or affilia-
tions 7.
87. Respondent has already demonstrated that the authors of the
Mandate could never have intended to impose a prohibition against
differentiation on a group basis, and in fact themselves made espress
provision for such differentiation in respect of certain particular matters
If Applicants' contention relative to tribalism (i,e,, as understood in the
preceding paragraph) were to be correct, it would be surprising that
Respondent was permitted throughout the lifetime of the League of
Nations to apply the policies on which it regularly reported tothe Council
of the League. In pursuance of the said policies Kespondent, while
taking steps to eliminate tribal customs and practices which were re-
garded as being in conflict with civilizedconcepts and standards, and while
l Vide,e.g.,IV, pp. 261, 262 and z7r.
Ibid.. p.316
Ibid., p. 375.
Ibid.,11.413 and uidealsop. 469.
' Ibbid..p.261 and videatso p. 271.
Ibid., pp.261-262. AS to the premise underlying Applicants' Submissions 3 and
4,ibid.. pp.269 and 493.
' Ibid., pp. 375and 412-4 I3.
Vide sec. B, paras. 8-1supra. REJOIXDER OF SOUTH AFRICA z93
seeking to introduce to the Natives modern methods and to lead them on
a path from a traditional society to a modern one, at the same time re-
cognized their indigenous social and political institutions and adopted a
system of "indirect rule", in which the said institutions could, and did,
play a rneaningful part l,as they still do today. But not onIv was Kespon-
dent permitted to recognize and make use of the esisting tribal systems
and institutions, it was indeed commended by the Pem~anent Mandates
Commission for doing so. In this connection the follotving statementç
in the Counter-Rlemorial relative tothe attitude of the Commission, being
strikingly apposite,are for convenience repeated here:
"In 1922 the Commission is reco~ded to have said:
'The Commission expresses the hope that the primitive organisa-
tion in tribesmay be rnaintained unaltered wherever it still esists'2."
"In 1923M. Yanaghita expressed the view-
'that the mandatory ~overnments are to be commended on their
adoption of the principle of maintaining the former organization of
the tnbes, and of recognising the power of the chiefs up to a certain
point'2."
85. As Respondent has further demonstrated 3, until the Second
World War, and to some extent even for some years thereafter, the posi-
tion was silbstantially the same in al1 the colonial and mandated terri-
tories in Africa south of the Sahara, in that the indigenous population
groups, while not participating in the processes of central goveriiment,
were allowed a measure of self-government of a traditional or localized
nature through tkeir indigenous or trihal institutions.
It may be apposite also to give an illustration of the vjews espressed
in meetings of the Permanent Mandates Commission by rnembers of the
Commisçion and representatives of the respective Alandatories retative to
such practices in particiilar mandated territories. This will be done by
quoting estracts from the Minutes of the Commission which relate to
certain territories.
(a) Tanganyika
(i)Mr. Ormsby-Gore(Represenfutive of tltemandat or Power) in
19q :
"IVhere the trihal organisation was fullp alive, the best
5ystem of administration \vas to work through the Native
organisation.
......................
It was the policy of the British Government to retain the
tribal organisation, and, where possible, this wouId be the
policy in Tanganyika.
..... .......... .....
It was the picy in regard to Tanganyika to rebuild the tribal
system, where it has been destroyed and to maintain and
estend it where it exiçted."
* Ibid.p.2417.4.
Ibid.pp. 430-431.
' P.M.C., Min.. VI,p. 126.2?4 SOUTH JVEST AFRIC.4
(ii) MY. Scott (Representative of tlx~lfandalov~Poweu) in 1926 ':
"The idea of the Government of Tanganyika was that a 'good
African' should be an African from the bottom, and that
meant that he should not be cut away from his roots, which
were in the country and in the traditions in which he was born
and in which he lired.
......................
The Government did not wish to deny to the African Native
the benefits of Western civilisation. but wanted him to assimi-
late graduaIl? the rnost suitable and best elements of that
civilisation grafting thern on to his old and original African
ideas and traditions. He should be improved and trained by
the influence of \.f7esterncivilisation, but iri such a manner that
the ingrained native feeling should not run counter to or
srnother it."
(iii)ir Donald Cameron (Represenlative of the 11,fandatoryPower)
in 1927 quoling/rom the Mandatory's Report for theyear 1926:
"Being convinced that it is neither just nor possible to deny
pemanently to the natives of the territory any part in the
government of the country, the Government of this territory
has adopted the policy of native administration, a policy which
aims at the elimination of race-friction hy the provision within
the limits of their own native administrations of legitimate
scopc for the political interests and aspirations of Africans both
educated and uneducated, so making itpossible for thern to
evolve, in accordance with their traditions and th2ir most
deeply-rooted instincts, as an organised and disciplined com-
munily within the State, mhich, by reason of the widely
divergent degrees of civilisation and wealth of its component
races, does not admit of political evolution analogous to that
of homogeneous nations in Europe and elsewhere in the world.
............. ........
LVe have supported this system oi native administration
principally for the reasons which 1 have given-that is, to
find for the nativea place in the body politic, giving him a posi-
tion which is founded on his own inherited rights and duties,
which is based on his own native laws, customs and traditions.
It is a system which he understands, and for that reason we
are not inventing it nor have we invented it, as some of the
critics have inferred who have no knowledge or evperience
of the administration of countries with a population of primi-
tive Africans. We have not invented the system; it is a system
which the native has inherited.
Apart from the poiiticalreason, the second reason why we
have adopted this systern is in order to preserve the discipline
and authority which the native knows, in order that the whole
social fabricof the native may not fall to pieces, as it has doye
in certain parts of Africa where the native has become detri-
balized 2."
P.M.C.. Min., IX.p. 140.
Ibid.. XI, p61-62. REJOINDER OF SOUTH AFRICA 295
(b) Togolmd (underBriti~hMandate)
MY.Thomas(RepresentatieieoftheMandatoryPower) in 193I:
" With regard to general administration, the system of indirect
rule has for some time been encouraged in .thenorthern terri-
tories and the northern section of the British sphere. Political
officers have given study and thought to native customs, laws
and institutions, which will assist in paving the way for re-
establishment of the native authority,and the introduction of
indirect administration inDagomba l."
(c) Cameroons(under British Mandate)
(i) MY. Ormsby-Gore (Refiresentative of the Mandatory Powm)
in 1926 :
"In \.\'est Alrica, the Administration was endeavouring to
develop the system of indirect rule through the indigenous
native institutions. The policy waç not to appoint individual
natives who would be in the service of the British Government
but to work through the emirs and chiefs and the tribal organi-
sations 2."
(ii)M. Orks(Acting Chairmanof theCommissio~) in 1936, referring
to theMandatory'sreportfor 1935:
"This system, which was based on native institution's and
custams and on the localconditions ofeachadministrative unit,
varied considerably in different districts. The only essential
consideration ~vhichwas everywhere applicable was, according
to the report, the principle that the native authority, whether
represented by a single chief or a more or less numerous council
of natives, should be able to command and receive the obedience
of the cammunity. Zt waç stated , .. that the system was
popular and was working satisfactorily 3."
(d) Ruanda-Urundi
LM. Halewyck de Heusch (Representalieieof the Mandatory Power)
in 1928 :
". .. the Belgian Govcrnrnent still adhered to the system of
indirect Government, which had given excellent results '".
(e) Xew Guinea
(i) Sir Joseph Cook (Repyesentative ofthe Mandatory Powef) in
1922 :
"The Policy of the Commonwealth Government was to pre-
serve native custams, interests and rights wherever such
customs, interests and rights could usefully be retained.
Among the new Ordinances there was an Ordinance for the
special purpose of protecting native customs *."
(ii)SirJosephCook(RepresenlativeoftheMandatoryPower) im1924 :
". . it was clear from the report that the policy of the Adminis-
tration was to educate the native with a view to enabling him
1 P.M.C.,Min., XX1,p.qr.
Ibid., X, p95.
3 Ibid., XXX, p.53.
+ Ibid.II. p.34.i 7. SOUTH WEST AFRICA
to control his own destinies under the supervision of the man-
datory. Native leaders were set over tribes and left as far as
possible to look after their affairs.
. ..The intention was to give the native as much local govern-
ment as he was fit to receive. Reference had been made in the
report of last year (paragraph 165) to the fact that tfie German
Governrnent had established a system of indirect administra-
tion and that this system was being-cotitinued and extended I."
89. In the circumstances Respondent finds it strange, to Say the least,
that, while Applicants have avoided any attempt at controverting the
facts stated in the Counter-hiemorial relative to the practices which were
perrnitted during the lifetime of the League, and the conclusions drawn
by Respondent therefrom, they now advance a charge that Respondent
has violated its obli-ations under the Mandate because itspolicies "foster
tribalism".
Perhaps aii explanation of Applicants' attitude in this regard is that
they do not dcny that "fostenng" of "tribalism", in the sense of making
use of tribalinstitutions, was permissible during the lifetime ofthe League
of Nations and even commended by the Permanent Mandates Com-
mission 2,but that they contend it is not permissible today.
In this regard Respondent draws attent,ion.to the fact that in dealing
with what they rcfer to as Respondent's "policy of Ioissea-,fairwith
respect to tribalism", Applicants speak of "abdication" by Kespondent
of "the positive and progvessiveobligations of the Mandate" 3, and that
they say that "Respondent's poiicy may fairly be characterized as a
headlong advanceinto the fast" '.It would thereforeseem that Applicants'
attitude is that, inasmuch as Respondent's obligations in this regard are
I progressive", Respondent must adapt its policies to conform to modern
views and should not perpetuate practices which, though permissible in
the past, are in conflict with views generally held at present. Such an
attitude would be in conformity with Applicants' basic proposition
regarding the existence of a so-called current norm of "non-discrimination
or non-separation", in respect of which their argument mns along the
following lines:
"The relevance of the evolving practicc and views of States, growth
of experience and increasing knowledge in the political and social
sciences, to the determination of obligationç bearing the nature and
purpose of the Mandate in general, and Article 2, ~aragraph 2,
thcreof in particular . .. is of the very essence of the obligation
itself (italics added),
an argument khich is developed towardç a conclusion that Respondent's
obligations under Article z of the Mandate are to be adjudged in accord-
ance with-
".. .the relevant norrns currently and generally accepteci,rathet than
standards or criteria which may have been deemed applicable or
P.M.C., Mirz., XIX, p. 131.
l'ide paras.and 4.supra.
IV, p.412 (italics added): vide in this regard sec. W, Chap. II, parinfra.
' IV,p. 413 (italics added).
Ibid.,p.512. REJOINDER OF SOUTH AFRICA 297
acceptable ut th6 time tlzeMandate was conferred.nnd filaderlaken!",
(ïtnlics added.)
If,as would seern to be the case, Applicants' argument relative to tri-
balism is intended to rest on the same line of reasoning as that in the
aforegoing quotations, viz., that there is a legal .norm, formulated on
current standards, which prohibits differentiation on, inter dia, a 5oup
basis, and that Respondent's policy is violative of this norm because it is
based oii tribal consideration, i.e., because it distinguishes between tribal
groups, then Respondent rcfers to what it has already stated in refuting
the proposition that the Mandate rnuçt be interpreted in the light a£
current views and currently accepted norms or standards =.
In their treatment of the economic aspectApplicants charge Respond-
ent with "abdication of the positive and progressive obligations of the
Mandate by its policy of 'laissez-faire'with respect to tribalism" 3, and
they Say that-
". . . tribalism, which was one of the reasons why 'Native' inhabi-
tants were 'not yet able tostand by themselves under the strenuous
conditions of the modern world', has been deliberately fostered
through apartheid *".
So also, with regard to the education of the Native inhabitants of
South West Africa, Applicants aver that Respondent, by "its policy of
'mother-tongue instruction"', is "encouraging tribalism and thus
rendering [the Natives] ever less 'able to stand by themselves under the
strenuous conditions of the modern world' " 5.
go. Applicants also refer to criticism of Respondent'ç policy by others,
suc11as, for example, Philip Mason who has commented as follows:
"Can it really be thought that pandering to tribal parochialiçm
would make for peace or happiness. let alone the development of
any civilization or artistic achievement? . .. the argument for
White separation, which is based on the need for White national
survival, is being applied to the other people of Africa, partly to
satisfy a logical principle and partly to perpctuate White hegemony
when White supremacy has to go 'j."
Another example is their reliance on statements to the following effect
in the 1963 report of the United Nations Special Committee on the.
Policies of A$artheid.of the Government of the Republic of South Africa,
viz., "Fourth, the scheme aims at reinforcing tribalism and utilizing the
tribal system against African aspirations for eqiiality" ',and
"The creation of Bantustans may, therefore, be regarded as
designed to reinforce Whitesupremacy inthe Re~ublicby strcngthen-
ing the position of tribal chiefs, dividing tlie African people through
tlie offer of opportunities for a limited number of Africans, and
deceiving public opinion %."
l IV. p. 518.
* Vide sec. B. supra.
+ Ibid.. p413.13,
Ibirl., 375.
Ibid.p. 335.
Ibid.p. 357 (para.149).
Ibid.p. 358(parar .53).2g8 SOUTH WEST AFRICA
Respondent denies these unmotivated accusations. That its policy of
separate development is-not inspired by motives as alleged in the fore-
going staternents, but is indeed directed ai the upliftment and advance-
ment of the indigenous groups in South West Africa, as ivellasin South
Africa, to self-respecting communities with the aim of ultimate self-
realization for each group, is evidenced not only by what has been
stated in the Counter-Mernorial and in other parts of this Rejoinder. but
also by what is said inthe follouling paragaphs.
gr. As Respondent has already stated l, the tribal institutions and
systems which play a part in its policy of separate development are not
considered to constitute the limit to which political development of the
Native peoples couId take place, but are seen as a part of a progressive
system of evolutionary growtli. The traditional institutions and tribal
systems are regarded as, and in Respondent's policy serve as, a basis for
further political advancement which, combined with progress in tlie
fields of education and economic development, is intended to lead to-
wards separate self-realization for the diflerent Native population groups.
In this pattern of development the use of tribal institutions must not
be viewed as a permanent, but as a transitional phenomenon. Respondent
anticipates that in the process of socio-economic development, the tribal
system wjll undergo gradual changes and may eventually disappear once
it has served the purpose of facilitating the transition from a tradition-
bound to a modern society.
In this regard attention is drawn to the recommendations of the
Odendaal Commission relative to tlie constitution of homelands for the
different population groups in South West Africa and the establishment
of political institutions for such groups, inwhich institutions democratic
principles are to be grafted ont0 the traditional tribal systems =. -41~0in
the economic and social spheres, the developrnent of the liomelands wiil
bring about changes and adaptations which wilI, in the course of time,
materially affect and change tribal attitudes and values. In fact, up to the
resent, considerable changes in this regard have already taken place.
E'or exarnple, the changed attitudes of the Natives to regular work; their
willingness to dispose of stock; their willingness to send their children to
school; their adoption of improved methods of farrning and marketing of
their products; their change of attitude towards hygiene and health
matters ;their development of a sense of thrift and the gradual recognition
of the advantages of storing surplus crops to tide them over periods of
drought and scarcit y.
Further proof that Respondent's policy, far from limiting the progress
of the Native groups, is a vigorous and progressive one, will be found in
the report of the Odendaal Commission relative to such matters as
health 3, education ', agriculture 5, land tenure 6 and, economic and
industrial development 7,and in Respondent's reaction to the commis-
sion's proposals 8.
II,p.478.
H.P. So. ~211964.pp. 81-107 and vide secF, para. 3, infra.
R.P. 30. 121rg64,pp. 123-205.
' Ibid.pp. 219-263.
' Ibid.DD. zbr-lri.
"bid.; pp. gara. 310). 87(para. 323) and84 (para. 336 8.1
' Ibid.,111315-489~
Supple~xentlothe Countev-Mernorial. REJOINDER OF SOUTH AFRICA
299
That Respondent's policy of recognizing the stabilizing influence of
tribal institutions and customs, and of building thereon with the object
of bringing about a gradua1 process of evolutionary growth, is awise one,
can be demonstrated not only be reference to Respondent's experience
gained in the application of such a policy in South Africa l, but also by
reference to the views of other persons who can speak with authority
on the subject. This is a matter to be dealt with in the following para-
graphs.
92. A notable authority on tribal institutions and customs, Colin M.
Turnbull, who has held the position of Assistant Curator of African
Ethnology at the American Museum of Natural History since 1959,
states:
".4n impartial examination of the details of tribal systems reveals
the falsity of many popular misconceptions, and, although it is not
suggested that such systems can or should be deliberately perpet-
uated, it is suggested that there is within them much of very real
value 2."
One of the popular rnisconceptions referred to by the author as held
among rnany Africans, Europeans and Americans, is that-
". .. tribalism is something backward; incompatible in the modern
world to Say the least-and that is leaving a great deal unsaid, for
tribaIism is a source of shame to some Africans and a subject to
ridicule and scorn among other peoples 3".
He states as his persona1belief that-
". . .there are in tribal çystems many values, institutional and per-
sonal, that could play a significant role in the developing of new
political and social systems and, indeed, might prove a major con-
tribution in the realm of international relations 3".
Hesaysfurther that ". ..the desire to divorce tribalism from the modern,
contemporary Africa with which we have to deal is both unrealistic and
misconceived" 3. And he expresses the view that-
"[i]f tribalism is destroyed, so, in those areas, is al1morality, and in
its place can onIy come, for a time that might be an eternity, the
rnorality of expediency. Far from being incompatible with any
modern process of social evolution, tribalism, properly understood,
could help it on and, at the same time, bring to it al1the richness of
the past 4."
A similar view is reported in a recent issue of the publication West
Africn to have been expressed by Dr. Azikiwe, Preçident of Nigeria.
In an article in the said publication dealing with a lecture delivered by
Dr. Azikiwe under the title "Tribalism-A Pragmatic Instrument for
National Unity", he is reported to have said that-
"... the word tribe is employed currently in a derogatoiy manner to
identify the peoples of Africa and Asia, who are invanably described
= 11.PP. 477-433.
Vurnbull, C. hI., "Tribalisrn and Social Evolution in Africa",Annals ofthe
American Academy ofPoliticalatzdSocid Science.Vol. 354(July 1964)~ p.22.
Ibid., p.23.
+ Ibid., p. 30.30° SOUTH WEST AFRIC.4
as 'primitive' or 'under-developed' or 'developing' or 'backward' or
what most writers in the nineteenth century used to identify as
'barbarian societies' ".
And he is further reported to have added, "1 hope that the new generation
of students of anthropology and history will put things right" l.
Another authority, Rrian McAllister, has expressed the view that-
"[ilt would be a tragedy for Africa if tribahsm were to be so weakened
as to leave the mass of people with no feeling of unity, of security, of
belonging to a group. If tribalism iç to go-and it will be a long time
before this happens-the great need is for something better to put in
. its place, somereal spiritual belief and stable organisation. Otherwise
the destructive forces which lie very close beneath the surface will
bring down ail the hopes of those who have put their faith in African
freedom 2."
93. Many authorities also testify to the fact that tribal affiliations are
stiU common and potent factors in the lives of most African peoples.
Thus Rupert Emerson, in dealing with American interests in Africa,
states :
"The social reality of Africa has been and largely continues to be
tribal in nature, dividing the continent into a multiplicity of distinct
and often warring,comrnunities marked off from each other by
. Ianguage, custom, and structure. As both caste and language
affiliations are still of great political importance in India, so in xfrica
the tribal attachments that many had thought anachronistic have
shown their vitality by their resurgence within the orbit of the new
political parties and. institutions 3."
~ Writing on the character and stability of African poIiticaI systems,
James S. Coleman remarks, inte rlia: .
". .. it would be incorrect to conclude that genuine tribalism is an
unimportant factor in African politics. The general trend for national
leaders to condemn any manifestation of tribalism-which, following
the loose language of non-Africans, they also use to denote ethnic
differences-is fair evidence,that it must still be a relevant factor 4."
And A. L. Epstein, in a work kntitled Politicsin an ~rbai Afvican Com-
munity, states as follows on the subject on tribalism:
.;'In a recent discussion of the question, Profesçor Harlow refers
to a widely he4d view that tribalism in Africa is on the way out, and
asks whethe~; this assumption is valid. 'We may be misled', he
remarks, 'ifwe mistake revolutionary changes in tribal custom for
decay.' The potency of 'resurgent tribalism' should not be under-
estiqated, he argues. On the contrary? 'its dynamic power çhould be
harnessed to the fask of nation building' 5."
Significant in this regard is th role &hich tribal ipstitutions and
l "Hatching Dr. Azikiwe's Egg", West djvica, 30 May 1964. p.593.
McAlljster. B., "TribalChallenge in The Sew Africa: Resistance to Cllange
Amang Primitive Cornmunities", Afvican World, Sep. 1963. p. 6.
Goldschmidt. W. (Ed.),The United Statesand A frica:Revised Edition (1963),
p. 21.
' Ibid.p. 50.
Epstein A,.L.,Polilic is an Urba~zAfrican Comnzunityp ,.228. REJOINDER OF SOUTH AFRICA 301.
customs still play in the Applicant States, a matter to which considera-.
tion is given in the succeeding paragraphs.
94. Liberia is an outstanding example of a State in which constitu-
tional arrangements and governmental policies. are largely based on
tribal considerations. Not only is this the position in the Hinterland,
which is inhabited by different tribes on a regional basis, but tribal
affiliations also play an important role within the more developed and
modern sector of the country along the,coast.
According to a publication of the United States Department of Com-
merce, Liberia is divided for political and administrative purposes
into-
". .. fivecounties[the Coastal area], 4 territories. ..and 3 hinterland
Provinces (Western, Central and Eastern). Districts within Provinces
contain local govemment units that are organized into chiefdoms
administered by .paramout, dan, and town cliiefs. Until World
War II, the National Government exercised only a tenuous control
over the tribal organization of the hinterland Provinces, and people
, from the Provinces took very little part in the administration of the
National Government. l."
In cornmenting on thissitAation, W. A. Hance wrote:
"Although a Negro republic, Liberia is in the paradoxical position
of having a native policy very similar to that of a colonial power,
with district commissioners operating under a system of indirect
rule 2."
95. Another authority, G. H. T. Kimble, has given the following de-
scription of the administration of the Hinterland areas in Liberia:
"Government in the tribal areas-the Hinterland Jurisdiction-is
by clan and paramount chiefç under the direct supervision of district
and Provincial commissioners. In theory these chiefs owe their
authority to the Monrovia government; but the reaI basis of it is
usually their stntus, derived either by inheritance or by election, in
the tribal group. Any departure from the established tribal customs
in the selection of chiefs is apt to cause trouble, as the govemment
has discovercd in various instances '."
In regard to participation in the Central Government, Respondent has
already mentioned that it was not until 1945 that the tribal people in the
provinces of the Hinterland received representation in the legislature of
Liberia for thc first time and that representation is still largely based on
tribal lines; one-third of the members of the House of Representatives
repreçent the tribes, which constitute by far the majority of the popula-
tion, whereas two-thirds of the members represent the small minority of
Americo-Liberians *.
96. In Liberia tribal considerations have also shaped the judiciaI
systern, which isof a dual nature in the sense that there are, inaddition to
the ordinary courts, also tribalcourts, presided over by tribal chiefs in the
1 U.S. Dcpartmenl of Conztnerce"Basic Data on theEconomy of Liberia",1959.
P. 4.
Hance, 11'. .AAfricon Economic Develop~nen# (1958),p. 237,
3 Kimble, G. H.T., Tropical Airico, Vol.II (1960). p. 351.
' II, pp. j07-509and 5". SOUTH WEST AFRICA
302
countrydistricts of the coastal area,and paramount chiefs in the Hinter-
land provinces l.
This system has been described as follows:
"Side by side with the Anglo-Americansystem of jurisprudence
esists a second systern of an entirely different nature and derivation.
This is cornposed of the laws and customs of the rnany tribes in-
habiting Liberia and the courts established to hear cases involving
aborigines or persons residing in the Hinterland. It is the announced
policy of the government to administer tribal affairs according to
tribal law and ciistom to the estent that they do not conflict with
statutes or administrative rgulations ... 2"
In this regard it is instructive to note how future developments are
seen by the Liberian Governrnent. President Tubman iç recorded to
have-
". .. stressed the uneven cultural development of the Liberian
people. He pointed to the necessity of having two sets of laws-civil
law (taken from the West) and tribal law . . . and cited arguments
heard elsewhere in Africa (including South African reserves) con-
ceming the benefit to all of thisdualcode.But heagreed that tribalism
was a temporary phenornenon and said he planned that the jj'estern
civil law be gradua+ilyextended from the forty-mile belt along the
coast into the interior until it covered the whole country .. .Asked
again, President Tubman said he thought tribal law and administra-
tion would be replaced throughout Liberia in about fifty years 3."
, 97. In Ethiopia the position with respect to tribalism is sornewhat
different from that witnessed in Liberia, and can perhaps best be de-
scribed as paradoxical.
The following is a description by G. A. Lipsky of the population com-
plex in Ethiopia:
"Ethiopia has been called an Ethnic Museum3 and this is in
rnany ways an apt description. An estimated total of seventy
Ianguages and over two hundred diaiects are spoken. The peoples
of Ethiopia profess two major faiths and subscribe to a multitude
of widely differing local religious systems. The peoples are further
distinguished by separate origins, histories and political organiza-
tion;by variations in physical appearance, dress, and customs; and
by diverse sources of self-identification and loyalty +."
The same authority has outlined the attitude af the Central Government
to the population situation as follows:
"Despite the manifest ethnic complesity of the countv, the
central government has not forrnulated any explicit ethnic policy.
With fewexceptions (notably in the portion of the 1957 Penal Code
dealing with polygarny), it has nvoided giving any positive sug-
gestion that it recognizes Ethiopia to be a multinational state with
many languages, religions, and cultures
Fraenkel,RI. .ribe andClass in ~Vonrovia(1964),pp. 94-95.
Allott,A.S.. Judicial and I-egaSysicm in Africa (igtizpp. 83-84.
Munger, E. S., AfvicanPicld Reports 1952-1961 p. I19.
* Lipsky,G. A.,Edhtopia: IfsP6opb, ZtsSociely, Ils Culture (ry6p.34.
Ihid., pp. 37-38. REJOlNDER OF SOUTH AFRICA 3O3
Over recent years it would seem that the Government has been desirous
of bringing about nationalization of the Ethiopian peoples.
Thus the same author has stated : .
"Since the return of the Emperor in 1941 the Ethiopian govern-
ment has taken a number of steps that clearly indicate it is attempt-
ing to prevent the development of strong ethnic loyalties where
they do not already exist, and to supplement ethnic, local, and
regional identification with allegiance to a central Ethiopian govern-
ment and Ethiopian traditions l."
In this regard Respondent has already drawn attentioi to the constitu-
tional developments in the country, particularly to the position which
obtained after 1931 when the hlonarchy became a constitutional one in
which the members of the Chamber of Deputies were, as a temporary
measure, chosen by dignitaries and local chiefs 2, and to the changes
brought about by the new constitution in 19j5, which provided for
universal suffrage 3.
98. illthough outwardly it may, therefore, appear that ethnic and
tribal affiliations are no longer important considerations in the govern-
ment and administration of Ethiopia, the opposite is in fact the case.
Indeed, the 1955 Constitution has been described as being-
". .. more a blueprint for the future than a full and accurate
description of the present system. Some provisions restate in
Western-style legal language aspects of the traditional system of
the country. Others, as yet only theoretical, foreshadow institutions
and procedures the Emperor views as desirable for the future.
Nowhete is there a break with the basic assumptions of the tradi-
tional system 4."
Paradoxical in this regard are the provisions directed at the promotion
of national sentiment in the new constitution, whan compared with the
views expressed by Emperor Haile Selassie in a speech to Parliament in
November rgj5. The Emperor said:
"No single document, however profound and comprehensive, can,
of itself, bring about far-reaching and fundamental constitutional
progress. No constitutional progress can take effect unless it ts
rooted in the fundamental traditions, customs, habits, and predi-
lections, as well as the legal customs, of the society upon which
it is based+."
It is no wonder that the situation has been commented upon as follows:
"The Emperor was clearly alvare of the difficult problems involved
in making this new constitution a living document.
If the 1955 constitution is not to remain a dead letter like its
predecessor, it will have to be accompanied by a veritable revolution
of thought and action on the part of both its administrators and its
beneficiaries. For it can by no stretch of the imagination be main-
tained that this semidemocratic, semimonarchical document 1s
'rooted in the fundamental traditions' of Ethiopian society. It is, if
Lipsky. op.cit.p.38.
Ihid., p527.
Lipsky,op. cil.p.1703O4 SOUTH \irEST AFRlCA
anything, so foreign to those traditions in some respects as to.be
scarcely recognizable as deriving from them ... At al1 eventç, its
meaning seems to be lost on the vast majority of Ethiopians, if,
indeed, they so much as know of its existence ... The promulgation
of the new constitution . . . was probablv calculated to impress
foreign observers of the Ethiopian scene and to enhance the prestige
of the Ethiopian go-ernment abroad l."
That the new constitution, in so far as its objective waç to bring about
nationalization of the people of Ethiopia, has had little effect in that
direction is clear from the factual situation.
Thuç it has been stated:
"It wiUbe a long time ... before ethnic identities will be diluted
in any way or supplanted by an Ethiopian nationalism. Even
among Amharaç [the dominant group] and certainly in relations
between Amharas and Tigrais such nationalism has not developed 2."
99. That constitutional arrangements and policies which either dis-
regard the existence of tribes within a population complex orare directed
at the elimination of tribalism, are not only unrealistic but dangerous, is
perhaps best evidenced by developments in the new independent African
States, a matter which has already been dealt with j.
IOO.In the light of the aforegoing, criticism of the wisdom of Re-
spondent's policy on the ground. that it is orientated to tribal considera-
tions, i.e., in the sense that it isdirected towards separate development of
the different population groups, seems misplaced. And it is surprising that
such criticism should corne from the Applicants when regard is had to
the conditions and practices in their own countries, and particularly in
Liberia 4.
...101. In the premises Respondent repeats its denial of the charge that
in,f'fostering" differences between the population groups in South West
Africa and in "foster[ingj tribalismJ'-i.e., if these expressions can be
regarded asappropriate descriptions of Respondent's policy-it is inspired
with any improper motives relative to the Native groups, or any other
groups, in the Territory. . .
H. Migratory Labour-as an Alleged Consequence of the
Homeland System, and the Evils thereof
. 102. Allied to ~~~licantç' central theme that Respondent's "policy
and practice .. . is directed toward the primary end of assuring an
adequate 'Native' labour supply in the Territory" 5,are their allegations
in the Replv relative to the syçtem of migratory labour which operates in
the Territory.
.Applicants' contention in this regard is that Respondent's policy of
separate development, which "involves creation of ço-called 'Bantustans',
Homelands', or 'Reserves' ",
'J
... presupposes, inter alia, a system of migratory labor,in which
'Luther, E. W., Ethiopia Today (1958). p.42.
Lipsky, op. czt.F.38.
Vide Chap. III.sîspva.
' Videparas. 94-96,supra.
IV, p. '7'. REJOINDER OF SOUTH AFRICA 305
men whose homes are in such areas spend long periods of labor in
distant urban centers or on farms in so-called 'White areas' 1".
'Theydraw attention to the fact that 'in the operation of such a system
the workmen are separated from their families for substantial periods l.
and they contend that the system is the "true cause" of social evils such
as "prostitution, venercal disease, alcoholisrn, crime and the like" 2.In
support of this contention they quote adverse comment from several
sources regarding aHeged "disintegrating effects of migrant labour on
African life" 3, and the "economic jlls" and "evil social consequences
particularly the disruption of family life " 2, alleged to be attendant on
the systern.
103. Upon the case thus presented in the Reply Applicants advance
tlie following comment :
"Respondent, nevertheless, regards this implicit result of itç
admitted policieç as so irrelcvant to the central issue as to warrant
no discussion whatever, among the voluminous details with which
the Counter-hfemorial is concerned '."
In Respondent's submiçsion there is no substance whatsoever in this
allegation. It is true that the Counter-Memorial did not deal in particular
with the implications or consequences of the system of migratory labour
in the Territory, Save for referring to the fact that the Natives in the
northern territories arc not permitted to rernain perrnanently in the
l'olice Zone but have to return to their.reserves at the expiration of their
contract periods. The reason for ttiis lack of treatment of the subject in the
Counter-Memorial was precisely because Applicants thernselves, while
referring in the Mernorials to the fact that migrant labour is recruited in
the northern territories 5,made no complaints relative to alleged social
evits attendant on thesystern, nor did they then contend that Respond-
ent's policy of separate development "presupposes . .. a systern of
migratory labor" 6.
104. In' view of the allcgations now made by Applicants in the Reply
relative to the role of migratory labour in the policy of separate deveiop-
ment and to the evil consequences of the system, Respondent includes in
this Rejoinder. in itstreatment of the Economic Aspect, an exposition of
tlie syçtem and the implications thereof 7.In thepresent context Respond-
ent. in order to refute Applicants' aforementioned charges, wishes to
draw attention only to the following deductions from its more detailed
treatment of the subject :
(a) although the system of migratory labour admittedly has certain
adverse effects and contributes to the social evils mentioned by
Applicants, the undesirable phenomena often attributed to the
system are to a large estent caused by the difficulties which are
' IV,p. 262.
Ibid., p467.
Ibid., p284.
* Ibtd., p262 : vide alfootnnte .+on thesaid pagefor the pcculiar comment that
liespondent's silence in the Counter-hlernorial is al1the more surprisinthelight
of"widesprcad criticismof precisely this aspect of [the] separatedevelopment policy"
by persons quoted in the Reply. O
1,Qp. 123-124.
Vide para. 1.supra.
' Vide sec. H,Chap. II, paras. 15-42,anlva.3c6 SOUTH 1VEST AFRICA
experienced, independently of migratory labour, by members of
traditional societies,such as those in South West Africa, in adapting
themselves to the conditions of modern economies and the ways of
modern civilization ;
(b) that the system has decided advantages both for the migrant
'worker and for the economy of the Territory as a whole, and that
it is generaily recognized that in countries such as Soutli West
Africa, where a dualistic economy is a fact, i.e., an economy com-
posed of a modern sector and a traditional çector, theadvantages of
the system far outweigh the disad~anta~es. Indeed, in the present
circumstances of the Territory, as is also the position in many
territories in Africa having as yet underdeveloped economies and
largely underdeveloped population groups, a system of migratory
labour appears to be the most practical method of utilizing the
available economic resources and fostering economic development ';
(c) that, for the very reasons aforestated, the system of migratory
labour is a common phenornenon in rnost countries in Atrica as
well as in other countries of the world where espanding industries,
niining enterprises and agricultriral development offer employme,nt
opportunities to workers who are prepared to migrate temporarily
in search of higher wages 2;
(d) that, far from Respondent's policy of separate development "pre-
suppos[ing] .. . a system of migratory labor" and being directed
at creating conditions which give rise to migrations of labour, it
aims at the opposite end, viz., the economic development of the
Native areas and proposed homelands, so that ever-increasing
empfoyment opportunities will be created in such areas in con-
sequence of which the incidence of labour migrations to the
European areas in the Police Zone is expected to diminish 3;
(e) that the suggestions made by Applicants that the present migratory
labour force of the northern territories shoiild be permitted to
settle in the Police Zone, and should be perrnanently atisorbed in
the modern economy of that Zone, are not only economicaHy
unsound and impracticable, but also unrealistic if regard 1s had
to the interests of the Native inhabitants of the Territory as a
whole 4.
In the premises Respondent submits that Applicants' allegations, both
in regard to its motives in perrnitting a system of migratory labour to
operate in the Territory, and in regard to the implications and conse-
quences of the system,are without substance.
f. Philip Mason's Suggestion of Perpetuation of Measures of Discrimination
105. The third basic difference between separate development and
partition, according to hfr. Philip Mason, issumnled up by hi~nasfollow~:
"India and ~akistan, Ulster and Eire, face each other asequals;
a citizen of one when in the other is ina position similar to that of
an Englishman in France. The Bantu homelands have not of course
lSec. H, Chap. 11,paras:15-22.
Ibid., paras. 29-31,
' Ibid., para32-42, RËJOINDER OF SOUTH AFRICA 3O7
yet reached the projected stage of independence, but it does not
appear to be contemplated that a similar equality shouId ever
anse l."
This alleged difference is considered by Mr. Mason as even more
important than the two other reasons advanced by him for distinguishing
between separate developrnent and partition, viz., that "there is ... no
agreement that there shall be partition and the partition proposed cannot
be regarded as fair l."
106. This argument by Mr. Maçon is fallacious, because it rests on the
entirely unwarranted açsurnption that the present legal provisions in
South Africa are to remain unchanged for ever.
These provisions were designed to meet specific situations and condi-
tions, and will necessarily be subject to amendment and adaptation as
circumstances change. Many of them were introduced in the early,
paternalistic stage of group relations, and some have already been adapted
to the needs of the present times. As Mr. Maçon himself recognized in anJ
earIier work,
O ". .. there can be little doubt that in the paternal stage barriers
are needed and itmay be that some barriers are necessary during
the difficult period of transition from a static to a dynamic so-
cietv ... 2".
No doubt these provisions will be further adapted to meet changing
circumstances. In regard to al1rneasures which may be considered hurtful
to the dignity of any person, it is Respondent's policy to repeal them as
and when the need for them falls away. The position at any stage in the
future wil1consequently depend on the circumstances then existing, and
in particular on matters such as the stage of educational, social and
economic advancement of the Bantu population generally, and the extent
to which the risk and fear of domination by one group over another has
been eliminated. In this regard, Dr. Verwoerd said recently:
". .. the limitations imposed on the freedomç of people (as we find
practically over the whole world where anybody lives in the territory
of sornebody else) fa11away as soon aseverybody can enjoy his own
freedom in his territory.Even the type of rules which one applies
to protect oneself in one's own territory ... will then be seen in a
more realistic and constructive light. Human rights will have more
opportunity to develop to the full in terms of our policy when
separation takes place and the nations exist alongside each other,
than in terrns of the United Party policy, according to whlch
attempts will be made to rnaintain the position of the Whites for
as long as possible in a mixed community ..:3"
And the endresultsought to be attained was expressed hy him as "head-
ing for racial peace. It is only the National Payty's flolicy that will
eventztally lcad to an absence of raciat discrimination because it isonly
whuz the races are separated and Eive like aeiglzbozt~thnt discriminatzon
will be able to disappear" 4.
IV, p. 332.
3Iüson,P..An Essay on Racial Tension(1954). p. 133.
H. ofS..4. Pavl.Deb., Nouse of ..lssembly, \17eekly Edit(4 to SBray 1964)~
Cols.j6+1-jG4z.
R. ofS..4. Paul. Deb.op.cil. (2Jan.1963), Col.230.308 SOUTH WEST AFRICA
107. As the pattern ofgoup relations changes, it may well happen that
the provisions ob'ected to by Mr. Xlason will dirappear completely, or
that only vestigia 1traces of them will remain in the type of immigration
replations which are found throughout the world. That these are not
far-fetched possibilities is shown, inter alia, by the fact that ejren at
present many disiinguished non-European persons from foreign States
visit the Republic and are received with hospitality on a basis befitting
their dignity and status '. And on their attainment of independence,
the Bantu states themselves may, in CO-operatingwith Respondent on a
consultative basis, be able to play a role in shaping the relations between .
the various states and their citizens.
108. The possibilities discussed in the preceding paragraph are, by
their very nature, bordering on speculation. Whether the developments
there set out will eventuate or not, only the future can tell. What iacer-
tain, however, is that no person is justified in assuming, as Mr. JIason
does, that the situation will remain static. Indeed, the probabilities point
in the opposite direction. If the policy of separate development towards
independent homelands is carried out to its completion, the whole situa-
tion in South Africa will be so radically different from that obtaining at
present that there will in al1 probability alço come about far-reaching
changes of various kinds in the relationshipç between Ulack and White
and in the legislation pertaining thereto. In liespondent's submission, it is
completely unrealistic, when considering the merits of a political system
which is sought to be established in the future, to condemn it on the
assumption that present legislation will continue in existence although
such legislation was rnotivated largely by the circumstances whicli the
futiire political systern is designed to elirninate.
J. Mason's Suggestion that the White Population in South West Africa
1s To Be Taken into Account for a Transitional Period only
109. In discussing the role of Europeans, and, in particular, White
farmers, in South West Africa, hlr. Mason commences bp saying that
the White population at the inception of the Mandate was les than
20,000 and that it hardly amounted to a vested interest at that stage *.
He then continues:
"It wouId show a lack of historical understanding however to
blame the Government of South Africa at that tirne-for failing to
perceive how rapidly world opinion and African aspirations would
develop .. . It was believed that the prosperity of South West
Africa, and indeed of al1 African territories, would depend on
development by Europeans, and European farrners were encouraged
to come into the Territory j."
At present, says Mr. h,lason,the Europeans are "a considerable vested
interest" and "contribute substantially to the econamy of the Terri-
tory" 4.The question then arises: what policy should Respondent adopt
towards the Europeans?
Rlr. Mason's answer to this question is as followç:
1 Vide,e.g.,the staternents I>yoncithem in Cliap. VII, para37, infra.
* IV,p. 335.
Vbid.. p~i 335-336
+ Ibid.p. 336 REJOINDER OF SOUTH AFRICA 3O9
". . . theargument for giving the Whites special treatinent is that
they make a special contribution to the economy. As a transitional
measuve this is a soundavgzcment, but it can hardly justify giving the
ihites a privileged position permanently l". (Italics added.)
This proposition appears incontestable, but it is clear that differences
of opinion could arise on the question as to what constitutes a "privileged
position". In particular Respondent does not consider that ultimate
self-determination for the Europeans is a "privilege" any more than for
the various non-European peoples. Once the "vested interest" of the
Europeans is conceded, as Ivlr. Mason does, Respondent accepts that
they have a rightin the ultimate analysis to take the vital decisions on
their own future.
It is on this point that Mr. Maçon joins issue with Respondent. He
advocates, inter alia, the removal "with al1 deliberate speed" of racial
distinctions in the Police Zone and preparation of the non-White groups
for a share in political life, perhaps in a federal system. Regarding the
practical effect of the numerical preponderance of the Ovambo, he says:
"It is either disingenuoui or naTve to clairn that 'one man, one
vote' would mean domination of other groups by the Ovambo and
instead to recomrnend a system whereby domination is in. fact
preserved by the much smaller White group '."
The fallacies in thjs argument are threefold.~irsil~, "domination by the
much smaller White group" never existed, inasmuch as the Territory,
and particularly Native Affairs, was always under the ultirnate control
of the South African Government and in important respects under the
irnmediate control of the Native authorities themselves 2.This situation
resulted from the grant of the Mandate to Respondent, and neither
Applicants nor Mr. Mason can reasonably cornplain about it. Conse-
quently, there exists no "domination" which cari be "preserved". Second-
ly, the system proposed by Respondent will not involve any domination
by the IVhite inhabitants of the Territory.Eventually the homelands will
become independent, and in the interim it is proposed that ultimate
control should continue to vest in Respondent's Government, not in the
European population of.the Territory j. 1ndeed, the Commission recom-
mended explicitly that "only the proposed White area should be ad-
ministered by an Administrator, Executive Committee and Legislative
Assembly" 3.And, thirdly, even the controi which it is proposed Re-
spondent would exercise in respect ofhomelands is destined to fa11away.
The intention is that the end result wîll be a situationin which no group
will dominate any other.
rro. In the result itis submitted tbat Mr. Mason must be held guilty
of the naïveté or disingenuousness of which he accuses Respondent.
Evervbody, including Respondent, will agree with him that the present
position, in which the European section of the population of South West
Africa exercises greater political rightsan other sections, can be justified
only on a transitory basis, and that the goal should be equality among
the various groups. Respondent does not, however, agree that this goal
can be achieved by reversing the present position and subjecting the
IV,p.337~
Vide IIIsec.E, pp. 105-131,
Vide H.P. No. 1zj1g64 ,p.61-62,31° SOUTH WEST AFRICA
White inhabitants to political control by the largest group of non-
Europeans. That would be going bejrond aboiishing the "pritrileged
position" of the Europeans, and would in fact amount to depriving them
of their right of self-determination. And, despite what Mr. Maçon says,
he cannot seriously suggest that any govemment controlied by any of
the non-European grouys in South West Africa could, within tiie rela-
tively near future, maintain the present high standard of admiiiistration,
order and prosperitÿ in the.'l'erritory.
K. Incidental Matters Referred to in theReply
III. In the course of the treatment of the policy of separate develop-
ment in the Reply and in the various Annexes thereto reference is made
to, or comments passed on, a number of points ofincidental iinportance,
ormatters which are full. dealt with elsewhere in this Rejoinder. Insofar
as Respondent deems it necessary to deal with such questions at ail, they
will be considered seriatim in the next succeeding paragraphs.
Ir2. Applicants say:
". .. a highly relevant question is Kespondent's maintenance, .irto
the present, ofa subsistence economy in the Keserves. No evidence
isadduced by Respondent to justify its policy in this respect l."
This rnatter is dealt with fully in the section of this Rejoinder which
is devoted to a treatment of the economic aspect *.In view of what is
stated there Respondent denies the allegation of "maintenance up to the
present of a subsistence economy in the Reserves".
113. Applicants Say that-
". .. during an indeterminate,and probably pern?anent, 'transition
stage', Respondent describes its objective, with respect to tlie iii-
habitants of the 'Territory, as well as of South Africa, as ttiat of
serving as 'guardian' in order to-
'. .. keep the ward in hand and teach ltim and guide Itim and
check him where necessary' 3."
Respondent concedes that the transitional stage to complete territorial
separation is indeterminate, but it is absurd to cal1 itpermanent. It is
Respondent's policy to grant independence to the various groups as and
when each group becomes ripe therefor. In particular, witli regard to
South 1Vest Africa Respondent draws attention to its accepta~ice in
principle of the recommendations of the Odendaal Commissioti in this
regard 4.The exercise of Respondent's guardianship during tlie transi-
tional period will therefore have to be adapted to the inclividual needs
of the differentgroups at various stages of advancement. And, as regards
Natives within the White areaç, Kespondent has alrea* slio\vn that
their position also will prohably undergo an evolutionary development 5.
It is completely wrong, however, to describe these matters as constituting
Respondent's "objective with respect to the inhabitants of the Territory"
-Respondent's objective is and remains that- of advancing the 1-arious
IV,p.262.
2 Vide sec.H, Chap. 111,paras. 2-13,infra.
IV, pp. 3x5-316.
* Jbid.. p.203.
5 l'ide parasro6-108s,upra. REJOINDER OF SOUTH AFRICA 311
Native groups towards eventual independence. The interim measures
referred to are purely incidental to this objective, and serve only to
provide for circumstances and problems which are entailed in the situa-
tion existing hefore al1homelands have achieved full independence, and
are consequently by their very nature subject to continuous revision and
adaptation. It also stands to reason that the nearer the ward develops to
maturity, the less need there will be for teaching, guiding and checking
114.In Xlr. Mason's article (Annex I to the Reply) there appears a
suggestion that the financial contribution of the South African Govem-
ment towards the developrnent plans reconimended by the Odendaal
Commissionwould not be gencrous "if South West Africa is regarded as a
province of the Republic" '.The exact significance of the suggestion
evades Respondent. South IVest Africa is not at present a province of
the Republic, and the future development envisaged for it by the Com-
mission is in the direction of autonomous homelands-in other words,
not in the direction of constituting the Territory a province of the Re-
public. The possibility of South West Africa as a whole ever becoming
part of the Republic would consequently appear to be remote, and Mr.
Mason's suggestion correspondingly pointless.
115. Applicants also state:
". .. the one and one-half million 'Coloureds' and half million
'Asiatics' in 'White South Africa' are denied the franchise and other
civil rights, without any pretension on Respondent's part that they
have, or will be assigned, 'reserves' or 'Iiomelands' 2".
-Reference to the position of the Indians and Coloureds is made also
by Mr. Mason '. Inasmuch as there are no Asiatics in South West Africa,
their position need not be considered herein. As far as the Coloureds are
concerned, Respondent has analysed the relevant portions of the Memo-
rials and the Keply, and has shown that Applicants' charges relating to
the Coloureds rest on an alleged "nom of non-discrimination or non-
separation", and possibly also on an allegation that detriment is caused
to the Coloured people as a result of Respondent's alleged oppressive
policies towards the Natives '.Applicants do not, however, in so far as
the Coloureds are concerned, make an attempt'to support a charge, as
they do in the case of the Natives, of a process of deliberate oppression
for the benefit oftheEuropeans It would therefore unnecessarily burden
the record to give a systernatic review of the programmes contemplated
or already implemented for the economic, social and political upliftment
ofthe Coloured population of South Africa and the Territory. Sufice it to
say that the Coloured population inSouth West Africa is found in the
southem area of the Territory, and rnainly in the towns; that süitable
provision has been, and iç being, made within the European area for
their development inal1the spheres mentioned above, and that although
no sepa.rate homeland is envisaged for them, an appropriate system of
political representation has been devised to assist them towards tlieir end
destination which wiil provjcle fullrecognition of their rights to dignity,
justice and self-government.
IV,p. 330.
2 Ibid.p. 3i7.
3 Ihéd.p. 333.
Ibid.para. 15.aras11-15supra,312 SOUTH WEST AFRICA
116. In the course of hjs article l Blr.Philip Mason referç to "certain
laws and penalties of a more serious nature" which, he suggests, are.
relevant to a proper assessrnent "of the relationship between the Govern-
ment and the majority of the people in Soiith Africa" 2; After a discussion
of certain provisions, he concludes:
". . . to faIl back on such legislation indicates that sornething is
seriorisly wong, and a Government in aiiy way responsible, or even
responsive, to public opinion will try to put it right. If such legisla-
tion is steadily intensified over a nurnber of pears, itsurely indicates
that something is radically wrong in the relationship between the
Governinent and a large section of the people and in the policy
which the Govemment wishes to follow 3."
The tirst point to be noted, which AIr.Mason seems to have overlooked,
is that rome of the more extrerne measures to which he refers are only
temporary in nature. Thus, although it is true that the Ninister of Justice
rnay, ifhe is satisfied that a person serving a sentence which was imposed
for certain acfs committed against the safety of the State, is liliely to
advocate, advise, defend or encourage the achievement of any of the
objects of Communisrn, cause that person to be further detained 4.This
provision came into force in 1963 and lapsed on 30 June 1964. It was
then furthei extended by Act of Parliament to 30 ,lune 1965. It is, there-
fore, essentially a temporary measure. Furthermore, it has in fact been
applied to one person only.
117. The provision authorizing a cornmiçsioned police officer to detain
certain perçons for interrogation was also intended as n ternporary
measure to meet a particular ernergency, and Ilas in fact been withdrawn
by proclamation as from II fanuary 1965 6. Furthermore Mr. hlason
errs in saying, that "[nlo one may have access to [aperson detainecl in
terms ofthe said provisionj without permission ofthe Police or hlinister" '.
In fact the section itself provided that the niagistrate or an additional
or assistant magistrate of the district in which a pèrson was detnined,
was obliged to visit such person in priirate at least once a week, inter dia,
to hear any cornplaints or grievances '.
118. hlr. Mason refers furtherto a provision to t1;e eHect that--
".. .a person, who ohtains from outside the Republic any informa-
tion which 'could be of use in furthering the achievement of any of
the objects of Communism' and who iails to prove beyond a rcason-
able doubt that he did not obtain such information for such a pur-
pose, ma!; be sentenced to death 2".
IV, Annex 1,pp. 328-340.
Ibid., p.333.
Ibid., p. 334.
' Videsec.4 (a) of ricIr'o37 of 1963. Inso far as &Ir.3Iason'sparaphrase of the
section suggests that it could applied inrespect of a person servina sentence for
any offence\%-hatsoeverit isinaccurate.
Sec.17 of the General Law Amendment Act So. 37 of1963.
Vide Froc. So. H320 in Gouernmenl Gazette(Extraordinary Ko. 960). dd.
30 SOV. 1964.
Sec. ry (2)of Act Xo. 37 of 1963. REJOIBDER OF SOUTH .4FRICA 3x3
The provision in question in tmth provides that a person to whoin it is
of ipplication, shaH be guiKy of the crime of sabatage. A number of
other acts or forms of conduct, of varying seriousness, are likewise pre-
scribed as constituting such crime. Thereupon penalties are prescribed in
respect of the crime of sabotage generally. As prescribed, they can also
Varyfrom less serious tomore serious. Thepenalty of death isa maximum,
which may be imposed by a court in a fit case, in its discretion. The
sitggestion that a court might impose the maximum penalty on a person
convicted of one of the less serious prescribed acts of sabotage (such as
that referrcd to by Mr. Mason), is consequently qriite absurd, and is an
unwarranted slur on the South African judiciary. In fact no pcrson has
been sentenced to death purely on the ground of a contravention of anp
of the provisions of the General Laws Amendment Acts-where such a
sentence was passed, the accused had also been convicted, after proof
beyond reasonable doubt, of murder.
rIg. Another incorrect statenlent in hlr. hlason's article is contained
in a passage by Rlr. Gardiner, who states thai---
". . .ifanybody protests against that law [Le., a law which discrimi-
nates against non-Europeans] in a rnanner which causes disorder,
that is'cornmunism' 2".
It is clear that Mr. Gardiner (and, for that matter, Mr. hiason) has not
taken the trouble to investigate the legal position. As early as 1950 the
Soiith African Supreme Court held as follows:
"The Court grantea. an application hy a Cornrnuniçt ... for the
setting aside of a prohibition . . . ofa certain political pamphlet ...
where itfound that though certain passages were calculated inter
dia to arouse resistance to the police in the administration of the
pass and iiquor laws or to engender feelings of hostility against the
Government ,or its legislation, they werc not calculated to engender
. feelings of hostility between the European section of the population
an the one hand and the non-European sections, .or one of them,
on the other 3." . P d . .
This is,of course, not to say that incitement to public violence ' is not a
crime in South Africa, as anyu7here else. Biit the suggestion that it must
necessarily be "communism" is absurd.
120. A further gross error on Mr. Maçon's part appears from the fol-
lowing words:~ .
". ..it is not easyto see how the Ovambo could really improve on the
General Laws Amendment .Act as an instrument for perpetuating
their nile 5".
The suggestion that Respondent'ç rule in south \l'est Africa is per-
petuated by the General Laws Amendment Act, is entirely fallacious. In
fact the major provisions of the two 'General 1,aws Amendment Acts
referred to by Mr. Mason 6 do not apply to South West'Africa.
l Sec. II (b) (ter) ofthe Suppression of Cornmunisiri Act No. 44 of 1950,as
amended *sec. 5 of Act No. 37 of1963.
Vide du3Plessisv. Minister of Justice, 19(3) S.A. 5.79.
' Mr. Gardiner spenks of"in a manner which causes disorder".
) IV, 1'337.
Mo. 76 of 1962 and So. 37of 1963.314 SOUTH WEST AFHICA
121. However, even paying due regard to inaccuracies, omissions and
exaggerations in &Ir. Maçon's article, Reçpondent readily acknowledges
that the legislation to which he refers is of a very drastic nature. The
immediate reason for its promulgation can be found in the activities of
certain terrorist organizations,to which some reference is made below l.
hlr. Mason states that the recourse to such legislation "indicates that
something is seriously wrong" '.That may indeed be conceded, but the
assumption that it isRespondent's policy that is wrong does not, of
course, follow. The simple fact isthat the whole of Africa is in a turmoil
politically,socially and economically. The indigenous peoples have been
compelled by circumstances to adapt themselves within a bewilderingly
short while to the most radical changes in their traditional conceptions
and values. Philosophies, often not properly understood or formulated,
such as thoseof comrnunism, liberalism,nationalism, and anti-coloniaiism,
have swept the continent. Savagery and bloodshed are never far from
the surface.
South Africa has not been immune either to the loss oftraditional
values by a number of Rantu, or to the philosophical or emotional
substitutes which in many cases replaced them. In particular there have
been sections of the population in which feelings of nationalism have
degenerated into an anti-White and anti-Indian terrorism, or which have
fallen under the domination of the Communist philosophy. In many
instances these people have been instigated from abroad, and reinforced
by saboteurstrained in other countries. Terrorist niovernents of this type,
even if srnall in numbers as in South Africa, can do incalculable harm,
unless nipped in the bud. In these circumstances drastic measures were
applied with such success that, as noted, Respondent has been able to
withdraw some of the legislation objected to by Mr. Mason.
122. Respondent fully realizes that in the long run drastic penal pro-
visions cannot secure peace unless the majority of the population is
reasonably satisfied. In so far as any existing conditionsmay be a legiti-
mate cause for dissatisfaction, Respondent's policy is exactly what Mr.
hIason propagates, viz., to "try to put it right2.And Respondent makes
bold to say that despite al1efforts to the contrary by foreign instigators
and agitators, its policies are achieving ever-increasing success in thrs
regard, and bringing satisfaction to the ovennrhelming majority of al1
concerned. Indeed, the lack of success of movements like Umkolzio we
Sizwe and Poqo bears eloquent testimony to the fact that they repre-
sented only a very small section of the population.
In a sparçely populated country Iike South Africa,with long and vulner-
able lines of communication and power, and a large Bantu population,
many of whom are acquainted with the use of explosives by working in
the mines, a terrorist movement enjoying wide support could only with
great difficulty, if at all, be put down, particularly since many States in
Africa have expressed their willingness and, indeed, enthusiasm, to
support such movements. Respondent is convinced, however, that such
a situation will never arise, exactly because the Bantu population as a
whole is contented, and is adapting itself to the exigencies of the modern
world without undue dislocation. This Respondent ascribes in no small
Vide sec.F,Chap. VI, paras.61-63.
3 Vide Chap. VI,para.61, injua. REJOINDER OF SOUTH AFRICA 3I5
rneasure to its policies which seek to retain as much as possible of the
traditional life of the Bantu whilst gradually initiating them into the
principles of modern political and economic lile. The policy of separate
development provides an opportunity for political self-realization withoui:
a complete break witli their custorns, in other words by evolution as
opposed to revolution. At the same time Respondent's policies in the
economic, educational and social spheres have resulted in a standard of
, well-being far exceeding that in any other State in Africa.
123. The circumçtances which have called forth the measures referred
to by Rlr. Mason will, however, probablp continue to exert their influence
for some time to corne, at least until the current political and social
revolution in Africa has abated and made way for greater stabilitj-Until
such time the whole of Africa will probably continue to present the picture
ofgovernments applying severe measures in order to curb revolutionary
movements, which, if any were to anse in South Africa, Respondent
confidently expects to be small and unrepresentative ones. In this con-
text it is worth remembering that there exist many infringements on
persona1 liberty in other States in Africa which are of a far more extensive
nature and langer duration than those in South Africa, but which have
nevertheless often been less successful l.
124- In the course of his article, Mr. Mason seeks to explain the reasons
for "the offensiveness to much of the world of the policy of separate
development" 2.In keeping with the nature of his subject he seems to
have given vent to feelings of indignation, to the detriment of logic and
accuracy. Thus he commences by saying that in the ifrhite area-
". .. urhich isrnuch the greater part of the country and the area of
chief opportunity, the two principal races should continue to exist
but that in that area tlie White race, although even there a minonty,
should be by law perrnanently superior and the other perrnanently
inferior-and that every individual belonging to the latter should
be reminded of the inferiority by constant humiliation 2".
This passage contains a number of wrong assumptions or assertions.
Firstly, why should Mr. Mason imagine that the \Frhite population will
always remain a minority in the White area? If the recommendations of
the Odendaal Commission wéreto be implemented, there would not only
be an appreciable increase of land for the non-White groups at present
living in the Police Zone, but various development plans would enable a
far greater portion of them to earn a living in thcir own homelands.
Secondly, Respondent disputes that non-Iflhites in the Police Zone are
by law inferior-the provisions that apply only to non-Europeans are
necessary in the interests of al1the inhabitants, including particularlv the
non-Europeanr thernselves, and do not connote inierio~ityor any constant
humiliation. Thirdly, as has been seen, Mr. Maçon is not entitled to
assume that these provisions will remain unaltered for cver 3. Fourthly,
why- çhould he assume that, despite the various ambitious plans for de-
velopment of the homelands, opportunities fornon-Europeans would not
in due course there become as great as, or greater than in the European
area?
Vide Chap. II1,sztpra.
IV, p. 338
Vid8 paras.rd-108, supra.3 1b SOUTH WEST AFRICA
125. Mr. Maçon then proceeds to consider further alleged deficiencies
in the policy of separate developrnent, and suggests that this policy
prevents the inhabitants of South. West Africa from "belonging to a
group big enough to exercise sovereignty and to be represented abroad" l.
The reasoning in support of this allegation is as followç: . .
"To split up half a million people into twelve groups and en-
courage them in separatism is in the long run the surest way to bar
them from the self-i-ealisation thatthey seek l."
The basic fallacy underlying this passage has repeatedly been refuted
by Respondent. It does not split upthe people into 12 groups, but merely
refrains from forcing the 12 existing groups together. At the same time
Respondent does not place any impediment in the way of any of these
groups eventually amalgamating or federating should they so wish.
Perhaps realizing that the above argument is not particularly con-
vincing, hlr. Mason immediately jumps back to the note on which he
started. Thus he says that separate development involves keeping the
non-Europeans ". . . ht am's length in remote parts of the country and
only [admitting them] tothe area of progress under a cloud of humiliating
restrictions" l.
Ifonedisregards the tendentious language itbecomes clear that this is
pure repetition. It suffices to Say therefore that Respondent does not
appreciate the significance of the expression "at arm's length in remote
parts of the country"; that most of the proposed homelands have greater
development potential than the greater part of the European area, and
that the restrictions are neither humiliating nor necessarily permanent.
126. Mr. hlason then proceeds to consider the effect of the admitted
differences in the stages of development reached by the various groups in
the Territory. ,With reference hereto he says:
". . . the aspect of South African thought which is widely questioned
elsewhere is the assurnption that .an individual is permanently
limited by the limitations of his group l''.
It is difficult to understand where Mr. Mason received the impression
that such an assumption exists. Respondent is fully aware that even at
present there are many individuals anlong the variouç Native groups in
the Territory who stand out above others bv reason of higher ability,
education or the like, and that the general standards both of the groups
as a whole and of the exceptional individuals will continue to rise. One
of the reasons for the policyof separate development is that it will provide
opportunities for such people to realize their full capacities. Indeed, the
whole homelands scheme as well as various development projects will
require the services of a considerable number of educated Native men
and women who possess qualities of ability and leadership. It is the
realization that such persons are or will become available that has, intev
alia,influenced Respondent in its view that the time is ripe for accelerated
developrnent of the Territory. Consequently the dispute between Ap-
plicants and Mr. Mason on the one hand, and Respondent on the other,
relates not tu the question whether there exist individuals who transcend
the average standards of their groups, but to the totally different en-
quiryas to what type of opportunities should be created for such individ- IV. p. 339.
Vide Chap. IX, para. 4, infra, where this matter is further considered.
Vide Chap. XI, para. I i,infra.
+ Vide Part C, sec. II. supra.318 SOUTH WEST AFRlCA
between' relatively advanced and relatively undeveloped groups l.
Separation between groups does not, however, mean that individuals arc
not able, on due advancement, to be the equaIs of the beçt in any other
group. Indeed, separate development may expedite the advancement of
individuals by protecting them not only against social phenornena such
as racial prejudice, but a80 against cornpetition by members of the more
advanced groups. Examples of individuals among the non-Europeans in
South Africa or South West Africa who have attained the highest ranks
would include the Transkei Cabinet, who control a substantial civil
service, including high European officials; professors at university
institutions such as Fort Hare or Turfloop, etc.
129. In the preceding paragraphs Respondent has analysed the reasons
set forth by Mr. Maçon for "the offensiveness . .. of the policy of separate
development" 2.Respondent has, it is submitted, shown that the reasons
adduced by Xr. Masan are either imaginary or insubstantial. In con-
clusion Respondent would suggest that an attack of this sort would carry
greater convictionif solidly basedonrealitiesrather than on a combination
of phantasy and emotionally charged language.
130. After stating his reasons for regarding separate development as
offensive, Mr. hlason concludes:
"These are some reasons why it will be hard to find natives of
Africa who believe that to extend the policy of separate developrnent
to South West Africa even more completely than at present is in the
interest of any but the Whiteinhabitants 3."
What Natives of Africa will or will not believe, isclearly an irrelevant
issue in the present proceedings. This Court, it is respectfully submitted,
is concerned only with the judicial duty of ascertaining the facts and
determining their legal consequences. The incredulity, suspicion or
antagonism of Natives of Africa has no bearing on judicial proceedings,
as distinct, possibly, from international political activity.
131.In the Working Paper, Annex 2 to the Reply, it is said that "[tlhe
Odendaal Commission recommended a five-year development plan at an
estimated cost of R114,51z,485 . . .".
The United Nations Secretariat must either be very slipshod in their
work, or else they deliberately attempt to minimize the extent of the
five-year plan. In fact the figure mentioned by them reflects only the
estimated amount of loan funds to be provided directly or indirectly
by the South African Government 4.In the very same paragraph in which
the Odendaal Commission mentioned the above figure, it continued:
"In addition thereto the ... net shortfall ofR~I,~OI,II~ will dso
have to be funded from South African sources. Therefore the total
commitment of the Government of the Republic of South Africa and
other State undertakings such as the South African Railways and
Harbours for the five-year period will amount to Rz56,401,1 4.1g
Consequently, the total arnount to be provided by the South African
Government towards the five-year plan will alone amount to over
2IV,dp.338. 106,supra.
3Ibid. p. 339.
R.P. No. 1211964, p.481 (para. 1509). I<EJOI?;DER OF SOUTH AFRIC.4 3I9
R156 million l. Howerer, even this figure does not represent the "cost"
of the five-year plan, but merely Respondent's contributioii thereto, To
this must consequently be added amoiints to be made available from the
revenue of South West Africa itself ?.
132.Annex 3 to the Reply (an evtract from the 1963 report of the
United Nations Special Committee on the Policies of Apartheid of the
Government of the Republic of Soutti AIrica) contains a number of
rnisrepresentations or errors. Some of these havealready been dealt with,
and others do not merit refutation. The remaining oneç will be considered
in this andthe succeeding paragraphs.
The Committee refers to "a series of laws to outlaw al1 social inter-
course between the racial groups" 3.This is acompletely incorrect state-
ment. No such laws exist.
Referring to provisions such as the Bantu Authorities Act of rggr and
the Bantu Education Act of 1953, the Committee says: "Each of these
measiires increased tension in the country and could only be imposed by
forcc '."
The Committee states further that the establishment of Bantu au-
thorities "was 'accompanied by Government threats, by murder, violence,
arson, tribal revolt and severe police action' " 3,and that "the Govern-
ment has resorted to threatsto cut off financial assistance and discontinue
necessary social services. has deported leaders, and imposed chiefs and
headmen who are wiIling togo along with the Government in return for
promotions" '. More particularly Applicants allege dissatisfaction in
'Tembuland, Sekhukhuneland and East Pondoland 5.
The picture thus painted by the Committee is completely untrue.
Refore the establishment of Rantu authorities the fullest explanation and
consitltation takes place with the peopIe concerned. Respondent refers to
what has already been stated in this regard < In the Transkei (which in-
cludes two of the areas specificallymentioned by the Corninittee, viz.,
Tembiiland and East Pondoland) the introduction of Bantu authorities
took n clifferent course than eisewhere, The Bantu Authorities Act did
not originally apply to this territory, but the General Council representing
the Bantu of the area unanimously decided in 1955 to ask for the intro-
duction of the system of Bantu authorities. This request !vas acceded to.
Under its present constitution the Transkei possesses full power to dis-
establisfi or abolish Bantu authorities, but it has taken no steps in that
direction. It is apparent therefore that theRantu generally are in favour
of theBantu authorities. Respondent emphatically denies that it has ever
made use of any type of threat, or violence, orhas imposed the systemon
any section of the Bantu.
133. Although it is true that there was some diçsatisfaction or violence
in Tembuland, Sekhukhuneiand and East Pondoland, the reason was not
the introduction of Rantu authorities as such. The division of Tembuland
has a long history and Respondent does not propose detailing it here,
Save to deny that the people objected thereto. In the other areas, one
Iiide also articlePhilip Masanin IV,p. 330.
Vide IV,p.2 ru.
Ibid., p.352.
. Ihid.p.353.
Vide para. 67,supra.e inthisregard alsoAnnex 4,IV,p.3G1.320 SOUTH WEST AFRICA
reason for dissension was that trouble-makers misrepresented the system
of Bantu authorities as necessarily being a precursor of Government
schemes for agratian reform. These schemes, which involve the erection
of grazing camps for rotational grazing, contour ploughing, stock culling,
etc., are unpopular with some tradition-bound tribal agnculturists, and
are for that reason not introduced except upon a voluntary basis. In some
of the above areas agitators took advantage of the ignorance of the un-
sophisticated farmers to provoke rioting and disorder. In one or two areas
there was also dissatisfaction as a result of mistakes in regard to the
membership and constitution of the tribal authorities. LVhen the mis-
understandings and errors were rectified, dissatisfaction died down.
Respondent wishes to ernphasize that the type of trouble referred to
above affected a small proportion of the population in a few areas, and
that despite the activities of agitators, the establishment of the over-
whelming majority of the more than 500 Bantu authorities mas accom-
panied by general satisfaction and CO-operation.
134.In dealing with the Promotion of Bantu Self-Government Act,
the Committee states:
"During the debates in Parliament, Dr. Verwoerd said that the
Government's scheme would lead to a permanent White South
Africa, and that unless it was accepted, the only other choice was a
common multi-racial country where the Whites would be outnum-
bered by the Blacks three or four to one l."
As has been noted in connection with similar staternents made by
Appljcants =,this paraphrase is apt tobe rnisleadjng. The "White South
Africa" to which reference is made, is of course the European areas of
the country. Reading the Prime hfiniçter's speech renders it clear that
he did not, as appears to be suggested by the Committee, convey that
South Africa as a whole would be under the permanent domination of the
White group, but merely that the policy of separate development would
provide a homeland for each of the groups, including the White group 3.
Indeed, the passage which is apparently the one referred to by the
Committee, reads as follows:
8... if the possibilityof having separate territories as an eventual
settlernent of political airns is not possible . .. Nothing else is
possibte buta cornmon South Africa, a multi-racial country, although
numerically the Bantu wil outnumber the Whites three or four
times. Then 1 Say again that . .. 1 choose an assured White state in
South Africa whatever happens to the other areas, rather than to
have my people absorbed in one integrated state in which the Bantu
must eventually dominate +."
135. The Cornmittee proceeds to say: "AIrican leaders opposed this
measure as a further denial of their rights 1."The only "leader" quoted
isex-Chief Albert Luthuli =.Respondent isfully aware that Mr. Luthuli
opposed the measure, but does not accept that he is qualified to speak on
IV.p. 353.
"ide para. 8,supra.
' Ibid.. Col6223.aul. Deb., HousofAssembly, Vol.IOI (1959). Col62 14-6241.
Vide Chap. Vl. para. 61, injva, for further informaabout Mr. Luthuli. behnlf of the Bantu peopIe of South Africa. Elsewhere in this Rejoinder 1
Responclent shows the nature and extent of Mr. Luthuli's influence, as
also the substantial support which Respondent's policies enjoy among
the Baiitii people.
136. The Committee's discussion of the Transkei Constitution Act
also bristles with rnisrepresentations and inaccuracies. Thus it is said:
"During the discussions which follo\ved between the Government
and the representative [sic] of the Bunga it was reported that the
Government had indicated that it could not entertain any requestç
for greater powers than had been offered ... 2"
This is completely false. Verbatim reports exist of the discussions in
connection with the report of the Kecess Committee of the Transkei
'l'erritoriül Authority (the body which drafted the constitution) j,and
nowlicre was any such indication given by the Governmcnt. On the
contrary, before the Recess Cornmittee cornmenced its deliberations,
many of the leaders who wcre memhers of the Committee saur the South
AfricanPrime Minister, and he suggested greater powers for the Transkei
than they in fact proposed to ask for. The leaders gladly accepted this
suggestion and the recommendations of the Recess Cornmittee inchded
these greater powers. It can also be stated that there was complete agree-
ment between the Recess Committee and the Government officials as
ta what functions and powers should be handed over to the 'I'ranskeian
Government in the beginning, and also that further powers should be
handed over progressively "as the organization of each Department
becomessufficiently developed to carry the additional burdens" 4.Indeed,
a comparison of the Recess Comrnittee report with the Transkei Consti-
tution Act will confirrn the fact that al1the powers and functions asked
for by the Recess Comrnittee were in fact granted to the Transkeian
Government.
137. The said Committee states that it was also reported that the
Government had indicated "that the Transkei Parliament should consist
of Chiefs as well as elected representatives" =.
En fnct the true position is tliat the Government insisted from the
beginning on the inclusion of elected members The Recess Comrnittee
then clrafted a constitution making provision for a parliament of 64
chiefs and 30 elected representatives. During an interview between the
Recess Committee and the Prime Minister, the lattesuggested that large7
representutlonskozcldbe given torepresentatives elecdedby the people.This
suggestion was adopted, the Recess Committee resolving that the number
of elected members should be increascd to 45 '.At iio stage did the
Government insist on the inclusion of any Chiefs inthe Transkei Parlia-
ment.
138. The Cornmittee also states as follows:
l Vide Chiip. VI, para. 61, et seq.
= IV,P. 354.
IL PP. 473-479.
tees ;~tthe Session 1962,Ap.1viii.y:Prt~ceedings and ReportsciSelect Cammit-
Act So. 48 of 1963, FirsSchedule.
Vide II,p.480.
' R. of S.A.Parl. Deb.House of Assernbly1'01.3 (19621,Col. 5264.322 SOOTH WEST AFRIC:\
"Serious differences among the Chiefs and people of the area were
soon reported in the press. A number of cases of violence in the
territory during 1962-1963 were attributed to opponents of the
Governrnent's scheme '."
These allegations are completely unfounded. Probably much to the
apartheid cornmittee's disappointment, the whole Transkei was calm and
peaceful throughout the period since negotiations were started in connec-
tion with self-government, during the passing of the Act, the voters'
registration and election campaigns, the election of the Cabinet, the
establishment of the Government and right up to the present. As will be
shown, the people of the Transkei participated in al1 these events with
enthusiasm.
139. Regarding the powers of the Transkei Parliament, the Committee
states,interalia:
"The powers and functions of paramount chiefs, chiefs and head-
men are not superseded by the establishment of the Legislative
Assembly. however. The latter is not entirely competent in the
restricted area of its jurisdiction because tribal authorities retain
their original powers in certain areas2."
This statement also is not correct. The Constitution Act provides that
the powers, authorities and functions of Bantu authorities shall be and
remain in force until varied or withdrawn by the Legislative Assembly.
140. The Cornmittee says: "Umtata, the &est town in the Transkei,
will be the seat of government. The State will have no capital as Umtata
is a White area '."
Itis in the hands of the Transkeian Government to determine ~vhich
town is to become the capital of the territory. Its choice may wellfallon
Umtata, which is the present seat of the Government. In this regard it is
to be noted that it is governrnent policy that al1 towns in the Transkei
should eventually be in the possession of the Bantu population andthat
this process is already under way.
141.The Cornmittee concludes its report with a number of wild and
exaggerated criticisms In so far as these points warrant any discussion
at â11,they are dealt with in earlier Parts of this Rejoinder. The criticism
includes the irresponsible statement that "the 'Bantustans' were not
demanded by African leaders but were imposed against their wishes" 6.
AS has been shown 7,this statement is completcly false. NO authority
therefor is quoted, and its inclusion in the Cornmittee's report once more
demonstrates that no reliance can be placed on any allegation contained
therein.
142. In its next report, i.e., that of1964, extracts from which appear
in Annex 4 to the Keply, the Committee maintained the same low
standard of accuracy and impartiality. Almost at the very outset the
report commences by saying that in the Transkeian elections "political
l IV, p.354.
Ibid.,p. 355.
IV,.p. 356,
' Ibid.,pp.356-3511
Ibid.. p. 357.
' Vide linras67-84.supra. REJOISDER OF SOUTH AFRIC;\ 323
parties were not allowed" '. This is a cornplete fabrication. Kepeated
reference is also made in the report to Paramount Chief Victor Poto's
alleged multi-racial ideals. Attention is, however, invited to a later
discussion in this Rejoinder of some of his pronouncements, and, inter
aliah ,is statemerit in the Legislative Assembly that-
". . .the white people who should corne here are those who will be
willing to be under the government we propose to set up in the
Transkei, a government that willalways be iii the hands of the black
man =". (Italicsadded.)
143. The picture painted by the Committee3 of the course of the
elections in the Transkei is so completely distortcd as hardly to warrant
any repiy. The Committee refers to a Liberal Party publication 4.This
party exerted every effort to render the Transkeian elections a failure,
ernploying rnethods which are not relevant to the issues in these pro-
ceedings.
In fact, the people of the Territory took entliusiastically to the ex-
periment of the elections. In this regard it is necessary ~nerelyto quote the
judgment of a person who iscertainly not well-dispoçed either to Respond-
ent or to its Transkei policy, viz., Mr. Christopher R. Hill, Deputy
Uirector of the Institute of Race Relations, London. He writes:
"In the Transkei, the election campaign seems to have gone
smoothly though the circumstances were extraordinary in that most
of the emergency regulations imposed during the Pondoland disturb-
ances of 1960 were still in force. These measures forbid, irzteralia,
meetings of more than ten Africans without permission, but in
fact permission was freely given ""(Footnote omitted.)
The South African Institute of Race Relations published an estimate
that gopercent.or more of those eligible to vote, both within the Transkei
and outside, registered as voters 6.A total of 606,322 votes were cast in
the elections representing 68.8 per cent. of those registered, whereas a
further 28,966 votes (3.3 per cent. of those registered) were spoilt.
Considering the ciificulties involved in holding elections for the first
time in an area with a considerable proportion of illiterate voters, it is
submitted that these results dispel any suggestion of lack of interest
among the Bantu '.
144. Another statement by the Committee is the following:
"Despite the clear evidence of the Government's support for Chief
Jlatanzirna, nearly thirty-five of the forty-five elected seats were
= VidepChap. VI, para. 64,infra.
IV, pp. 360-36r.
' Ibid., p360.
Hill, C.K., Hanluslans :The I;vagmenlation of South d.ljri(1964),pp. 71-72.
South African Instituteof Race Relations, A Survey of I?aceRe1atio.n~in South
-4fvica 1963(1964).comliiled by Muriel Horrell,p. 96.
' It also belies the suggestion that persoofthe type mentioncd in the Liberal
Party publication. at IV, p. 364, were leaders or "cream" with any substantial
support. Their activitics were of the nature mentioned in para.121,supra, and.
three of them (Mandela, Sisulu and Mbeki) were convicted in the Rivonia trial:
videChap. VI,para. 61, i?ifra.324 SOUTH WEST AFRICA
won by supporters of Paramourit Chief Poto. This was widely inter-
preted as a repudiation ofapartheidby illeXhosa people '."
Firstly, there was no "evidence of the Government's support for Chief
Btatanzima". The Government remained completely impartial in the
eiections. SecondIy, it is impossible to determine to wllat evtent the
voters were influenced by political programmes (which were in any event
not clearly formulated as at the stage of the elections) and to what extent
by parochial or personal considerations. Only time can tell which of the
parties in facterijoysthe greater popular support, and even then itwould
be erroneous to contend that Chief Poto is "against ufiartheid"or Chief
Matanzima "for apartheid". An examination of their policies shows that
both to a greater or lesser extent cut across the issueon which European
political parties take sides. Chief Matanzima does support the major
lines of the policy of separate development, but Chief Poto also is not
entirely opposed to them.
l IV,p. 361. CHAPTER V1
JUDGMENTSOF QUALIFIEDPERSONSWITH FIRST-HAND
KNOWLEDGEOF SOUTH AFRICA AND SOUTHWESTAFRICA
I. .4s has been noted above ',one of the catogories of "relevant
evidence" introduced by -4pplicants in an attempt at showing "that
liespondent's policy and practice of apartheid fails to promote the well-
beiiigand social progress ofthe inhabitants of the Territory" *,consists of
wliat Applicants cal1 "Jildgments of qualified persons with first-hnnd
knowledge of South Africa and South West Africa" =. The material
advanced by them under this head predominantly comprises opinions
expressed by persons who, it is alleged, "by reason of South African
origin or long residence there, indubitably possess 'first-hand knowledge
of the situation' there, aswell as in South IVest Africa" 3.
Respondent is not quite sure what point is sought to be made by the
introduction of such "evidence". In the first place, much of this evidence
has no bearing on the basic principles of the policy of separate develop-
ment or apartheid, but consists merelp of criticism of particular actioiis
or rneasures which are, if relevant at all, only incidental to fundamrntal
aspects of policy. In some cases, such critjcismin fact derives fromstaunch
supporters of the principle of separate development, who merely express
dissatisfaction at some aspect of its application, or some aspect of policy
unrelated to such principle. In man' instances the criticisni relates to
measures or aspects of policy which do not apply to South West Africa
at all. In other instances itrelates to circumstances or measures which
have in the meantime altered fundamentally, or it is based on wrong facts
or assumptions.
2. Rut even in so lar as such "evidence" relates to basic principles of
the policy of "separate development" as appliecl in South West Africa,
Respondent does not appreciatc its significance. Respondent hasindicated
above that "evidence" can be of no assistance to Applicants if it demon-
strates oilly that some modern conimentators differ from Respondent on
the question of the best method for promoting well-being and progress,
since Applicants can succeed only by establishing that there isno scope
for honest difference of opinion regarding theallegeddemeritsof Respond-
ent's policy. In this regard, Respondent has already indicated in the
Counter-Mernorial that there is considerable scope for difference of
opinion, and in so far as Applicants attempt to establish the contrary b17
means of this "evidence", the matter i5 further dealt with herein.
3. It must immediately be obvious that Applicants cannot hope to
establish the existence of a gcneral consensus of opinion arnongst South
VideChap. 1,para. 3.su$ra.
IV, p.277.
Ibid.. pp. 277-278.The two "authorities cited by Respondent" (ibid.. pp-
278-280) will bedealtwith inChap. VII,paras. 40-41. infra.
' Vide sec.C. para. 39sirpva.326 SOUTH N'EST AFRICA
Alricans that the policy of their Government is \rrrong, particularly not
where the Government, as will be çhown l, has emerged from every
general election çince1946 with increased strength. Nevertheless it almost
appears as if Applicants do essay some such attempt. They inake the bold
claim that theirquotations (which are,without exception, critical of same
or other aspect of government policy) represent "a fairly selccted cross-
section of evaluations of apartheid" 2.That thiç clairn is false to the point
of dishonesty will be demonstrated in the follolving expaçition of the main
currents of thought in South Africa regarding relations between the
various ethnic groups in the country, an exposition that will disclose a
wide variety of views, a great body of which is favourable to Respondent.
This divergence ofviews is a natural result of the facts that the prob-
lems inherent in group relations are not only extremely cornpiicated, but
also affect the future of every man, woman and child in the country.
Consequently these problems have aroused much thought, deep soul-
searching and vigorous dehate amongst al1 sections and claçses of the
population. However, in every sphere of life touched upon by Applicants
in presenting their "Judgments of qualified perçons" there exists support
varying between substantial and ovenvhelming, for the policy of separate
development, which point of view iç nevertheless not represeiited at al1in
A plicants' "cross-section of evaluations". -4 further important aspect
w 1ich will appear from the exposition below is that the opponents of
separate deveiopment are themselves completely divided on the issue as
to what would constitute a prefcrable policy. It is beyond doubt, as will
be seen, that many opponents of goï-ernment policy would nevertheless
far prefer this policy to the alternatives proposedby some of their fellow-
opponentç (and in particular, the alternative proposed by Applicants) j.
4. The followjng discussion of trends of thought in South Africa, and
the parties, organizations and perçons propagating them, will also serye
as a setting within which to evaluate the persons and passages quoted in
the Reply 4. Respondent does not propose to deal separately with every
person and every point of criticism raised in this part of Applicants'
argument. After the gencral survey of currents of opinion, which \vil1
serve to place Applicants' aiithorities in theirproper perspective, Respond-
ent will, however, devote ver? brief attention to the substance of the
criticism voiced by them.
B. PoliticalPartiesand Policiesin South Africa
5. Since rg4S the governing party in South Africa has been the
National Party. Its policp of çeparate development has been described in
broad outline in the Counter-Mernorial and certain aspects thereof have
been elaborated herein 6.lt will consequently not be necessnry to give a
further exposition of its policies here.
The major opposition party in Parliament is the United Party. The
nurnber of seats held in the House of Assembly (i.e., the eIected, Lower
Vide para5, infra.
*IV, p.277.
lbid., pi4r.
* Ibid., pp2So fi.and 493 ff.
"1. pp. 457-43s.
6 VideChaps. IV and V, srlpra. REJOINDER OF SOUTH AFRlCA 327
House of Parliament) by each of these parties in the years since 1948 is
indicated in the following tablel:
Number of seuls held Nunzbev of seats Aeld
by rheUnitedParty by the National Pav#y
65 70
57 94
53 103
49 105
A similar pattern is noticeable in South \IVest-4frica where the United
South M'estAfrica Party (U.N.S.W.P., with a similar policy to theUnited
Part), in South Africa) and the National Party (with the same policy as
the National Party in South Africa) are the two majorparties. Since 1948
the U.N.S.Mr.P. has lost ground rapidly whilçt the National Party's sup-
port has increased considerablp, as is clear from the following table:
SEATS KELD Ih'LEGISLATlVE ASSPMBLY
Ifit is further taken into account that the sixelected representativesof
South West Africa in the House of Assembly of the Republic of South
Africa have ever since the first elections (rg50),been supporters of the ,
present Government, it isclear that the vast majority of the voters in
South West Africa as in South Africa support the policy of scparate
development.
6. The United Party yolicy, which has undergone a number of succes-
sive adaptations since the party went into opposition in 1948,was set out
comprehençively in a recent article by the leader of the Party, Sir de
Villiers Graaff=.He conirnenced by definingthe essence of the problem as
f01lo~~ ~s
"How can several races at different stages ofdevelopment, with
the most advanced of them a minority, live together in one State sa
that justice is done to all, and so that they can al1 share in the
processes of democracy?
How can that be done so that civiliçed standards, and that set of
values known as the Western way of life, are not swamped by
primitive rnajorities and lost to al1 of us?"
The United Party solution for theçe problems is, as regards political
rights, founded on a concept of"Race Federation", the basic elements of
which were stated as follows:
Stak ofSouth Africa Year Book 1962 :Economic, Financial and Statistical
Year-Book for the Republic of South Africa, pp. 43 and 46-47.
Srrnday Times. 7 Ayr1963.328 SOUTII WEST AFRICA
- "The race.groups which make up the population of the Republic
will have the widest possible measure of communal government,
especially in such matters as education, cultural affairs, locaI
government and certain matters of public healtli.
A communal council for each race will control those affairs, some
ofwhich 1 have already mentioned, which intimately affect that race.
Communal councils will also be established for areas like the Transkei
or for a grouping of smaller Native Reserves.
Matters which cannot be separately controlled by each race, such
as making roads and bridges, or the supply of electricity and water
resources, will be the responsibili ty of a joint board representative
of the communal councils concerned, or directly of the Federal
Government .
The powers given to each communal council would not iiecessarily
al1 be the sarne. They >vil1depend on the stage of development
reached by each race l."
The representatives of the various groups in the federal parliament
would be Europeans, and the European group would have amajority of
representatives. One of the five fundamental principles of the Party is
that-
"[iln the interests of both our White and our non-White peoples,
the leadership ofthe Whites is needed in South Africa for the ïvell-
being and the advancement of al1 l".
Influx control would be maintained but reformed, and a permanently
settled Bantu population established in their own townships adjacent to
the cities.
7. One more opposition party is represented in Parliament, viz., the
Progressive Party. This party came into existence in 1959 after a schisrn
in the United Party, and was then represented in the House of Xssembly
by XI former United Party rnembers 2.In a general eîection in 1961, the
Progressive Party retained only one of its seats. In 1962 it failed todefeat
a single one ofthe 15 United Party candidates it opposed in the Johan-
nesburg municipal elections.
8. The progressive Party advocates a non-racial franchise with a
double roll, -.each being subject to different educational, income or
property quaIifications. Itsreasons for opposing the one man, one vote,
cry have been oficially stated as follow-s:
"The Progressive Party rejected the principle of universal
franchise because the three conditions necessary to make it work
were absent in South Africa.
These conditions were: an integrated or homogeneous com-
munity, a certain degree of political maturity among the people and
universal or near universal eduction.
In a country where these three conditions were fulfilled, ilniversal
franchise was an ideal system.
In South Africa we have anything but an integrated or homoge-
neous society-there are very strong communal feelingswrhichmust
be taken into account, whether tve Iike it or not.
2 The year1955atIV, p.2866is wrong-itshouldbe 1959. REJOISDER OF SOUTH AFRICA 3=9
Further, a large percentage of the population, through no fault of
its own, was politically immature and there was no systern of uni-
verçal education.
The Progressive Party's qualified franchise and double roll was
the best way of making democracy succeed with an immature
electorate l." +
The Progressive Party also proposes protecting minority rights by way
of certain constitutionai provisions and çafeguards =.
g. Keference should be made to one other political party, viz., the
Liberal Party. It was founded in 1953, aIso after a split in the United
Party, and at first advocated. a non-racial qualified franchise. In. the
course of time itbecame more radical, and at present propagates the irn-
mediate introduction of universal adult franchise. No Liberal Party can-
didate haç ever succeeded in a White constituency, and frequently candi-
dates have lost their electoral deposits by polling less than one-fifth of the
total of votes cast for al1candidates in the constituency concerned. It is
difficult to assess the extent of support enjoycd by the party among non-
Whites, since membership figures are not kept by race. At its 1961 Con-
gress, a majority of delegates and observers was Bantu. Although the
leading positions in 1962 were still held by Whites, one of the three vice-
presidents and the national treasurer were Bantu
IO. To summarize, the following general observations may be made:
(a) Both the major political parties in South Africa, viz.,the National
Party and the United Party, recognize the necesçity of differentiating
between the vanous population groups in the country. N'hereas the
National Party policy for separate development envisages ultimate
self-determination for the various Bantu groups in their own areas,
the United Party contemplates a federation between the races
within one geographical area.
(6) The only one of the above four parties which advocates the im-
mediate introduction of universal adult suffrage, is the Liberal
Party, which haç made no mentionable impact on the electorate.
(cl Tlie Progressive Party, with its policy of a qiialified non-racial
suffrage and constitutional guarantees for minorities, appears to be
losing such limited support as it formerly had.
II. It is important to note the extent to which the political climate in
South Africa hjs been affected by the development in government policy
announced by .the Prime Minister in 1959 when he stated unequivocally
the acceptance. of independence for the seprate Rantu States as an
attainable end reçult 4.Later in the same year there occiirred the Split in
the United Party which heralded the birth of the Progressives. lt is
significant tliat the immediate cause of the split was an issue (the desira-
bility of purchasing further land for reserves) which had gained increased
importance by reason of the Prime hiinister's announcement. The~action
of the United Party came in the form of its Race Federation policy. And
.
l SafeguurdingYorir F~1wr.e:The PrincipIes and lJoliofethe ProgressivIJarty
of South hfrica. pp. 5-13,
Carter. G.31.(Ed.).Fjve A/ricun State:Hesponses to Divenit? (r964),p. 533.
' II, pp.465-466.330 SOUTH WEST AFRICA
reference was made aboveto the recent changes of policy and emphasis
in the Liberal Party l.
12. It is against the above background that the significance of the
"fairly selected cross-section of evaluations of apartheid" by "political
leaders" 3of the " 'White' South Africans" can be assessed. The "poli-
ticalleaders" quoted by Applicants are Air. Donald i\lolteno, Q.C. Dr.
Bernard Friedman 5,hlr.J. U. du P. Basson 6,Mrs. Helen Suzrnan 7and
Urs. Rlargaret Ballinger This list contains no mernber or supporter of
the governing National Party, only one member (Mr. Basson) of the
major opposition party, viz., the United Party, the members of the
Progressive Party (Dr. Friedman, 3lrs. Suzrnan and Jlr. 3lolteno)
including its one and only representative in Parliament (Blrs. Suzman),
and one member of the Liberal Party (hlrs. Ballinger). Applicants'
cross-section of political leaders is therefore confined to mernbers of
opposition parties, ivith an excessive loading of srnall splinter parties
which lie to the extrerne left ofthe political spectrum anddo not possess
any substantial support from the electorate.
In passing it may be noted that in no case have Applicants even quoted
the leader of the particular party in question (at least not iiiider the
heading "Political Leaders").
13. As appears froiii the above exposition, not only do the "Political
Leaders" represent a minority of the electorate, but the main (if not the
only) featiue common to the olicies advocated by them, is their oppo-
sition to the National Party. 1 t rnost therefore they establish that there
enist currents of opinion in South Africa which are vigorously critical of
National Party policy, and which openly and strenuously propagate a
number of widely different policies, each of which is considered by its
adherents to be preferable to the one adopted by the Government 9.
This is adrnittedly a situation which, although iinusual in the rest of
Africa, where the one-party State tends to be the rule la,obtainsin South
Africa. It is submitted, however, that such differences of opinion do not
establish either that Respondent's polie- fails to promote well-being and
progress in South -4frica orin South West Africa, or that its policy is not
bona fidedirected towards such promotion.
14. It is also interesting to note that al1the "political leaders" quoted
by Applicants have changecl their political affiliations in the course of
their careers.This isobvious in the case of themembers of the Progressive
or Liberal Parties, who were al1active in politics long before their present
parties came into existence. 1 tis, however, also true of Mr. Basson, the
single representative ofthe United Party quoted by Applicants. He was
----rly an organizer for the U.K.Ç.W.P. in South \\'est Africa. There-
l Vide para. 9,supra.
IV,P. 277.
Heading at IV. p.286.
Heading atibid.p. 280.
IV,p. 286.
Ibid.. p. 287.
Ibid.,p.496,
a Ibid., p497.
Only one of which accords with the policsuggestedforSouth West Africa by
Applicants.
IoVideChap. III, paras. 9-10,supva.
'lAs to which,vide para.5,supra. REJOINDER OF SOUTH AFRICA 33I
after he joined the National Party, which he represented in Parliament.
In 1961 he founded, uith the retired Chief Justice, Mr. Justice Fagan
(quoted by Applicants as a "Jiirist") a small splinter group called the
National Union, which made little, if any, impact on the electorate.
Hefore the 1961 general elections the National Union entered into an
electoral pact with the United Party, pursuant to which, interalia, Nr.
Bassori contested and won (withUnited Party support) a former United
Party seat. The Hon. Mr. Fagan was promoted to the Senate, and
shortly after the election the National Union merged with the United
Party.
15. Mr. Fagan is not, however, the only authority quoted by Appli-
cants from spheres other than the political wlio in actual fact has been
vcry active in politics. Thus, for example, Mr. Alan Paton quoted under
the Iieading "Authors") 2has been National President O 1 the Liberal
Party since 1962 3. Professor 1,eo Kuper (quoted under the heading
"Scholarly Authorities") was appointed to represent the sarne party on
the so-called South African Freedom Committee set up in terms of the
following resolution adopted at a meeting in Fordsburg on 3 February
1954:
"1. Thismeeting of the repiesentatives ofthe N.E.U.M., S.A. Indian
Congress, S.A. Indian Youth Congress, African National Con-
gressand Liberal Party totaily disregard the Xationalist Govem-
ment's oppressive Legislation and therefore whole-heartedlu
expects to defy al1 oppressive Laws of the Covernment.
2. This meeting calls for the formation of the South African Free-
dom Committee conçisting O[ two members of each party
represented; to find ways and means to defy whatever oppres-
sive laws the Government made.
3. This meeting calls upon any member of the proposed Committee
to pledge that no matter what happens they must never reveal
tlie plan or personnel of the Committee.
4. This meetingalso resolves that the Cornmittee must not be made
public. The masses muçt be told that each party only sym-
pathises with the struggle but takes no active part 5."
Tlre former Chiei Justice, the Hon. MT. Centlivres (quoted under the
heading "Jurists") 6 served on the Molteno Cornmission which was
appointed by the Progressive party to draft constitutional proposals for
insertion in the party's programme of principles. The policies of the same
part- are vigorously propagated in the press by Professor P. V.Pistorius,
a member of its National Executive, who iscluoted by Applicants under
the heading "Scholarly Authorities" 7.
C. Intellectual SocietieInterestedin Race Relations
16. On the more intellectual level, there are t~o socielies in South
Africa which are devoted to the scientific study of matters affecting the
Ibid.p.8287.
Carter, GAL.(Ed.), FiveAfvicata StatResponses to Diverçit(1964),p. 533.
' Departn~ental information.
IV,p. 286.
' Ibid.. pp495-445.332 SOUTH WEST XFRTCA
relationship between the various population groups in South Africa. The
first to be established was the Institute of Race Relations, which had its
origin towards the end of the 1920slargely as a result of European-Rantu
conferences convened by the Federal Council of the Dutch Reformed
Chrlrches l.Its membership was shown as 3,853 according to its annual
report for 1962-1963. Its object has been stated as follows:
"The object of the Institute is to encourage, work for, and foster
peace, goodwiil, and practical CO-operationbetween tlie various
sections and races of the population of Southern Africa. It is tied to
no political creed, respectful regard is paid to the traditions and
usages of the various national ancl racial groups, and due account is
taken of opposing views earnestly and sincerely held 2."
17. Despite the above-quoted statement oi its object, the Institute has
in the course of time developed, if not a creed or policy, then at least a
welI-defined political philosophy. The basic premises of this philosophy
were expreçsed as being- .
". . .belief in the value of the individual human being and his right,
by virtue of his humanity, to the fullest expression and development
compatible with similar rights of other individuals within thepattern
of a democratic state;
belief in the values of democratic society with its accepted freedorns,
rights and duties;
acceptance of the brotherhood of man in its Christian interpre-
tation 3".
Regarding the application of these principles, the Institute's attitude is
as follows :
"The Institute has consistently recognized that this concept of
democracy kas seldom, ifever, been applied in a multi-racial society
with peoples of varying cultures and at different stages of develop-
ment or, indeed, in any society. Nevertheless, it has alwayç accepted
that the full measure of such democracy must ultimately be applied
to South Africa . . .
The principles mentioned above do not predicate for South Africa
either a policy of total segregation or a policy of total integration.
While the late Professor Hoernlé, President of the Institute for
many years and largely responsible for the philosophy underlying its
work, .pointed out most clearly that a policy of complete territorial
segregation was as compatible with these principles as a policy of
complete assimilation, yet, after an exhaustive analysis of the
position at the time that he wrote, he came to the conclusion that
complete territorial segregation was in fact impossible. He himself
could proffer no complete solution for South Africa's difficulties
while racial attitudes remain as they are . . .
The Institute also considers that the adoption of a policy aimed
at total (physical, political, economic, social) assimilation as analysed
Hellrnann, E. (Ed.),Handbook on Race Relations ilz Soztth Afvic(1949)p.p
653-655.
Ibzd., p.654.
GOFovward in Faith: A statemeiit of the FundamentalBeliefs and Attitudes of
the South African Instituteof Race Relations (pamphlet issued by the South
African Institutof Race Relations). REJOIKDER OF SOUTH AFKlCA 333
by the Iate Professor Hoernlé is not acceptable and is equally
impracticable. The Institute, however, holds that basic cultural
assimilation is possible and desirable. Physical assimilation ... is an
entirely different matter . ..
. . . It also considers that, while fundamental human rights must be
granted to al1South Africans and positive steps taken towards that
end, the great rnajority are not in a position at present to undertakc
tliefui1 responsibilities inherent in siich rights .. .
In our present form of democratic society, political equality
involves fundamental equality and, with the predominance of
Africans in South Africa, it means ultimately the numerical pre-
ponderance in the political sphere of Africans. The Institute adopts
three approaches to this:
'The first is that, given the assiimption of a society which is
integrated in various degrees, the Institute considers that to deny
any racial group participation in some form or other in the central
anci local governing bodies is to condemn that group to yerpetual
subordination ~vhich no self-respecting people will accept. The
1nstitute accordingly believes that Africans must be represented in
oiir central legislature...
TheInstitute's third approach is that when one civilization claims
the rights and the duties inherent in the assumption of power in
another civilization the members of the former must qualify for such
rights. Whether such qualification should take the form of a common
but loaded franchise or some other form has not yet been formulated
by the Institute, but it believes that whatever form political
representation may take immediately, in the long run such re-
presentation can be no less than that held by Europeans. The road
to such common citizenship must be by evolution l."
18. The above philoçophy, which is vigorously propagated by ils ad-
herents in political, as well as academic and religious circles in South
Africa, is based on the following premises which have. in particular, been
the subject of dispute, viz.,
(a) that complete territorial segregation isnot practicable,
{b) that complete political and economic integration ispracticable
although, as the Institute recognizes, it "has seIdorn, if ever, been
applied in a multi-racial society with peoples of varying cultures
and at different stages of development" 2,and
(c) that it is possible in present-day circumstances to achieve complete
political and economic integration by a gradua1 process 3.
'l'hevery name of the pamphlet in which the above philosophy is set out
("Go Forward in Faith"), indicates that at least some (and Respondent
would suggest particularly the last-mentioned two) ofthe above beliefs
are matters of faith rather than of intellect or science.
19. Although the Institute of Race Relations clairns not to bc tied to
any pnrty political doctrine, it is patent that the premises and beliefs
underlying its philosophy find a great deal of common ground with the
COForwurd inFailIr,op.cit.
? Videpara. i7,supva.
trirChap. III, supra.policies of the Progressive Party l.Like the Progressive Party, its support
appears to be declining. According to its latest annual report (that for
1962-1963) the Institute's "membership ... has now decreased and now
stands at 3,853" 2.The same report states that "the 1961 rnembersliip
campaign was oiily very partially successful" 3.
20. Itis striking how many of the "White South Africans" quoted by
Applicants from intellectual spheres, are associated with the Institute of
Race Relations in one way or another, and subscribe toits basic political
philosophy. Thus its President is the Hon. Mr. O. D. Schreiner, former
Judge of Appeal 4. Professor Edgar H. Brookes 5, isa past Presideiit and
has longbeen a regular contributor to its publications. Indeed. the passage
quoted under his name in the Reply 5 was derived from an article in the
Race Reiations Journal, the organ of the Institute of Race Relations,,as
is the case with the passages quoted from articles by Professor hIonica
Wilson and Professor L. M. Thompson '.Other former Presidents of the
Institute are Mr. (not Dr.) Leo hlarquard 0 and Mr. Donald hlolteno 9.
A prominent member is Dr. Bernard Friedman 9. The passage by Yro-
fessor D. V. Cowen '0forms part of a lecture delivered under the auspices
of the Institute, as do those by Archbishop Dennis Hurley " and by Dr.
B. B. Keet 12.
21.The declinein the fortunes of the Institute may possibly be ascribed,
inler alia,to many of its adherents recently taking a new look at facts and
policies in South Africa. An example of these is Professor D. V. Cowen,
quoted as a "Scholarly Authority" '3. In a recent series of articles, lie
stated, inler alita:
"Among the essential factors ftequently overlooked by critics
abroad, 1 mentioned that no blue print for South Africa has aiiy
chance of sticking unless the Whites as well as the non-\hites want
it and wiliingly accept it.
However much one may deplore the fact, it remains a very hard
and real fact that the overwhelming majority of South African
Whites, in the present stage of their development, just cannot face
the prospect of living together with the non-Whites on a footing
of complete equality in one undivided country. One man, one vote-,
or even a qualified franchise which may lead to it-are not accept-
able to the Whites.
It seemed to me that some of South Africa's critics, well meaning
though they may be, tend to overlook the magnitude and frightful
difficulty of the human situation with which we are concerncd.
AS to which. vide para. 8, supra.
*South A fricanInsrilutofRace Relnlions (Inc.:34thAnnual Report 1962-r9C'3,
P. 19.
Ibid., p.17.
'Quoted by Applicants under the heading "Jurists", IV, p. 285,
Quoted by Applicants under the headiiig "Scholarly Authorities", ibid., p. 281.
Ibid.,p. 282.
Ibid., p. 283.
aQuoted as "Scholarly huthority", ibid.p. 493.
Quoted as "Political Leader",ibid.,p.286.
'OQuoted as "Scholarly .4uthority", ibid., p. 281.
Quoted as "Religious Leader". ibid.. 1496.
l2 Ibid., p284.
l3 Ibid.p. 281, uidcal50pp. 321-323. REJOINDER OF SOUTH AFKlCA 335
We speak of a colour 'problem', but colour is only an element, albeit
a very important one, in an evolving social and economic process
rather than a problem itself. We are faced with a process of deuelop-
ment that has to be lived with, rather than with an intellectual
problem whjch can be solved and disposed of.
Yet, while the White man in South Africa backs away from any
deliberate or articulated policy of living in a politically and socially
integrated society, increasingly he is beginning to recognize that he
cadnot continue to survive as a dominating and privileged minority.
Steadily, remorselessly, the pangs of conscience and the pressure
of public opinion take effect.
Whether the trend was foreseen, or whether it has become un-
avoidable, 'baasskap' [domination] has tended to give way to
'separate development'; even 'separate development' is coming to
be replaced in some influential quarters by the concept of 'separate
freedom'; and, meanwhile, quietly, industry and commerce effect a
revolution in White policies.
Xon-White standards of living are, of course, manifestly lower
than White standards, but they are steadily rising. and have long
beeii sufficientiy attractive ta draw migrant labourers (though
admittedly only a small proportion of the whole) from indepen-
dent countries which are out of sympathy with South Africa's
policies; for example, Uganda and Tangan ika '.
J3arely three years ago, in mp book 'The? oundations of Freedom',
i criticized the Bantustan experirnent in the Transkei on the score
that it was retrograde and undcmocratic, more particularly because
the idea of populai voting was entirely eucluded, as bdng alien to
the Bantu rnentality *.
The Governrnent's policy has since changed radically; under the
revised Transkeian constitution voting is now allowed to take pIace
on a substantial scale-a definite step, in my view, in the right
direction; and sothis particular piece of criticism largely falaway.
Indeed, 1 have been much impressed by an article which appeared
in The Star on July 27 by an African, Mr. D. T. Moerane, in lvhlch
he argues that the Government's Bantustan policy might, in the
long run. prove to be the most effective-as it is now the only
practicable-method of giving Africans in this country a voice in
the emerging pattern of race relations 3.
1have, in the past, seen the 'separate horneland plans' as affording
nothing more than a temporary respite, a lessening of pressure,so
to speak; but in the long nrn only a stage along the road to eventual
South African integration. And 1 have tencled to write down their
significance because of the more irnmediate impact of anomalies and
injustices in the so-called'White areas'.
However, it would seem wiçer not to spurn the value of ,any
lessening pressure in a dangerously emotional situation, especially
ivhere it is just not possible, in the short run, to press for one
undivided society on terms of full equality ...
Eviclence of change for the better is manifest to anyone ~110is
l The Star2 iSep. 1gGq.
* Vide IV,pp. 322-323,where Prof. Cowen's criticisrn this regardis quoted.
Videpara. 65, iirfrfor extracts from tharticle.336 SOUTH WEST AFRICA
honest enough to keep his eyes open, and humble enough not to
espect the irnmediate advent of the rnillenium.
This is especially true in South Africa's indurtrial life; African
minimum wages are rising steadilp; Iast February the Jlinister of
Labour stated in the Senate that there would be no ceiling to the
skills Africans would be allowed to acquire in the border areas (a
change in policy which has enormous possibilities); and, in the big
cities, the wastefulness and inequity of 'job reservation' is beginning
to break down in the face of economic realities l."
22. After the Second World War, a number of scientists, religious
leaders, cducatioiiists and otherç, who were interested in the scientiftc
study and examination of matters relating to race and group attitudes,
but who did not accept the political philosophy of the lnstitute of Race
Relations, founded the South African Bureau of Racial Affnirs (SABRA).
The nims of the Bureau are:
"(1)To promote and exert itself for the separnte development of,
on the one hand, the European and, on the other, the various
non-European groups of the population of South Africa, and to
protect and safegiiard the interests of these groups.
(2)To erzcourage'endwork for peace, goodrvill and CO-operation
between the various sections and races of the population of South
Africn.
(3)To devote itself to the accomplishment of ajust and equitable
regulation of racial affairs in South Africa. and to promote the
general welfare of the European, Coloured and Native inhabitants.
(4) To afford and distribute information regarding al1aspects of
race relations in South Africa and to create, here and elsewhere, an
enlightened public opinion in this connection, also as to the impli-
cations and application of a policy of separation.
(j)To do research work and to make a tliorough and scientific
studp of al1the important aspects of Our race problems.
(6) To exert itself for the proper development of the Native
Keçerves 2."
The Bureau has provided the following information regarding its
rnembership and sources of funds :
"Amongst its founder members were prominent leaders from al1
walks of life, not only from the Afrikaans group, but also frorn
among the English-speaking section. There were religious leaders
like prof.G. B. A. Gerdener, juristç like Dr. C. G. Hall 3,prominent
scholars like prof. H. B. Thom and Dr. W. W. hl. Eiselen and ais0
businessmen like 3lr. Hugh Solomon and Col. C. F. Stailard ',etc.
Sabra's membership rose frorn 500 in1949 to neariy 2,000 in 1964
and its membership isstitl growing.
Affiliateci to the organization are a number of universities, church
bodies. hancial and business institutions and a large number of
municipalities and other local autliorities, In ~io way whatsoever
does Sabra receive any financial support from the government."
The Star,21 Sep. 19~4.
South Ajricuit B~rreaofRacial Aflairs(SA HH:I): "Ainis. Iia\,ouraùRecep-
tion,"
Later Jiidge of Appeal.
'During the Second \\'orld \Var a rneml.ier of Generril Smuts' C,rbinet. IiEJOINDER OF SOUTH AFRICA 337
23. At the fourth annual Congress of SABRA in 1953 tlie following
resolutions were passed :
"(a) This Congres is ofthe opinion that a policy of differentiation
between (as distinct from discrimination against) the various racial
groups is not only just and Christian, but also the only one which
will ensure an equitable treatmcnt of these various groups. and
which is absolutely indispensabte if the particular outlook and
pattern of life of eacli of them are to bc acknowledged aiid respected;
and furthermore that a policy of assimilation necessarily involves a
negation of the particular outlook and pattern of life, and is bound
to lead to frustration and injustice.
(b) that Western Culture, having been brought by the Providence
of God to South Africa, must retain in any future developments
its fundamentally Christian outlook.
(cj that certain fundamental patterns of Bantu culture are of the
utmost importance to that culture and may not be threatened by a
process of belittlernent of that culture nor of overempliasis upon
the extemals of Western Culture.
(d) that if some new and peculiarly S.A. Culture should arise in
S.A. it can onIy be a spontaneous growth in the spirit of Our two
present cultures 1".
In 1952 SABRA issued the following statement of policy:
"By a policy of free and separate development, we must under-
stand the territorial separation of European and Rantu, and the
provision of areas which must serve as national and political homes
for the different Bantu communities and as permanent residential
areas for the Bantu population or the major portion of it . . .
Only a separation policy, which accepts the organic unity of the
13antu communities as a basis, can create conditions under which
the Bantu can determine the rate of their own progress, and which
can safeguard the European population against continua1 accusations
of discrimination antl neglect *."
q. hIany individual members of SABRA, as-well as other scientists
and scholars, have espressed favourable opinions on Respondent's
policies or certain aspects thereof. Some quotations from such authorities
are set out beIow 3.Although these authorities represent a verjesubstan-
tial and important section of academic and spiritual life, Applicants have
completely ignored them in making their alleged "fairly selected cross-
section of evaluations of apartheid" '.
25.In an addresscntitied "The Case in Favour of Apartheid" dehve~ed
in London in 1957, Professor L. J. du Hessis of the Facutty of Law at
Potchefstroom said, interalia:
"But there is a strong difference of opinion about the proper
course to pursue to attain their complete emancipation [of non-
Die hratureliiidie Strid-Afrikaaizse I,andbota: Keferate gelewer op die Vyfde
Jaarvergadering vandie Suid-tlfrikaanse13urtvir Rasseaangeleenthede (SABRA),
Jan. (1954).P.10%.
RacialaAffairs(S-ARRA), Stellenliosch1952,pp.u18 and 30.uth African Bureau of
Vide paras.2j etseq.,infra.
' IV,p. 277.338 SOUTH WEST SFRICiZ
European nations], namely whether it should be sought in one or
two integrated multi-racial societies, which haç not yet been nearly
accomplished; or whether the solution shouId be sought in develop-
ing a number of racially fairly homogeneous national comrnuiiities
according to so-called ethnic affiliations, for which the basis ctill
exists in the various British Protectorates and the native areas of
the Union of South Africa and South Xlrest Africa, which together
cover nearly half of the best land in Southern Africa. The first policy
is called that of integration or partnership, the latter is that of
apartheid or separate development and is, in the main, the policy
ofthe present Sou th African governrnen t.
The diffculty we feel in further developing an integrated multi-
racial society,can hardly be realized by foreign Europeans or even
Americans. Sirnply because they themselves do not face any national
crisisin this respect. They are szfe and secure in their own homo-
geneous national societies, and even the developing West-European
union would respect the national diversities of its several and
diverse component parts. And in the United States, even if the
negroes werz completcly integrated, Americans would not lose their
own nationality and the character of that great nation woiild be
hardly affected. 111South Africa, however, a similar integrat/on
would certain- wipe out the fully established South hfrican nation
of Afrikanerdom, whether Afrikaans or English-speaking, and would
immerse the developing non-European nations in inter-tribal chaos.
This would rnean at least the suicide of a young and virile nation,
a nation Christian in religion and European in racial composition,
a very successful and iiideed, as we believe, a necessary bulwark of
the \Vestern way of life in Southern Africa ... '"
26. Professor H. J. J. M. van der hlerwe, Dean of the Faculty of
Afrikaans in the University of South Africa, wrote as follows in the
course of a thorough analysis and discussion of the relevant problems:
"1 look fonvard to the day when we will experience equanimity,
peace and the prospect of a secure future and can live in harmony
as a South African people, united in will and purpose, nest to free
black states which can live together with the White states in a
greater whole of a United States of South Africa. With Segregation
this is possible2." (Translation.)
27.Dr. A. L. Geyer, former newspaper editor, Bigli Commissioner in
London, and Chairnian of SABRA, said in his Presidential address tothe
11th annual congress of SABRA in July 1960:
"Last year the congress welcomed the Prime Blinister's announce-
ment of policy regarding Bantu homelands and expressed it~
wholehearted support thereof.
Sabra does not only endorse the policy because in our opinion jt
presents the only method of safeguarding the continued existence
of the one White nation in this black contine~it. We also do so
'Du t'lessis, 1,. j.,"TCase in Favour of Apartheid", Sciencand Frecdo?ii.
h'o. IO(Feb, 1958) (A~iartheiand the IVorld's Universities: Reportaomeeting
held inLondon, Sov. 1957)~pp 32-40 at pp. 37-35
Van der3Ierwe. 1-IJ. J. M., SegregeeroiSte(1961).p.149. REjOIKDEK OF SOUTH AFKICA 339
because we believe that it is morally right and that in the long run
it is in thebest interests of our Rantu l." (Translation.)
28. Dr. G. Cronje, Professor since 1g37 at the University of Pretoria,
and now Dean of the Faculty of Philosopliy, said in a recent work:
"The ideal solution for South Africa's racial probiems is the effec-
turition of territorial separation between the various racial groups,
the socio-economic develop~nent of eacfi cornmunity, and the crea-
tion of its own form of government ?." (Translation.)
29. In a recent article entitled "In Defense of Apartheid", Professor
C. A. \Y. aIanning, a born South African who was personal assistant to
the Secretary-General of the League of Nations, Professor ofInternational
I,a\r and Diplomacy in the University of Oxford, and is at present Profcs-
sor Emeritus of International Relations in the University of London,
wrote the following:
"That very self-determination which his fathers fought for is what
the Afrikaner now envisages for each of tlie African peoples still
suhject to the white man's rule. The pliilosophy of separate develop-
ment implies a rejection of the fallacy that wherever a single system
of government is in operation, there do the governed compose a
single people. \Vere the critics of South Africa to accept squarely
the fact that South Africa comprises more communities than one,
their adrnonitions tvould be more persuasive and Lheir proposals
more to the point. As it is, what many of them keep calling for is
something which they might welf know to be impossible-the inau-
guration, narnely, of a system in which South Africa'ç many peoples
would resolve themselves unreluctantly into one j."
30. Dr. f. E. Holloway, formerly Professor of Economics, Transvaal
University College, Dean of the Faculty of Commerce, University of
Soutli Africa, Director of the Office of Census and Çtatistics, Economic
Adviser to the Treasury, Secretary for Finance, and High Commissioner
for the Union of South Africa in London, recently wrote a rnonograph
entitled "ApartIieid-A Challenge", in which he points out, inter alia,
that-
"[bJasic to al1problerns of group relationships there is a common fac-
tor which no statesrnanship is ever at liberty to disregard. This is
the aimost universal phenomenon that there is always a strong
tendency to friction when groups, which differ from each otlier in
important aspects, are thrown together in large numbers in the sarne
community 4".
After referring to the unique combination of possible sources of fric-
tion in South Africa, Dr. Holloway continues:
"The first task of statesmanship is that of sorting out the pieces
of varying size, shape, coiour, context and quality inthis giant jig-
saw puzzle. A satisfactory process of sorting out is a pre-condition
' South .-!frican Bureauof Racial Afiairs,jouroflRacial Joairs, Vol. IXo. q
(July rgGo),p.188.
Cronjc. G..Regverdige Rasse-apartheid(igq7),pp 155-156.
Manning, C. A. \Y.,"South Xfrica and the \Vorld: In Defense ofApartheid".
Foreigu .4Bnirs:An American Quarterly Neview, Vol. 43. Xo. I (Oct. 1964), at
p. 148.
' Hollotvay, J. E., Apautheid-AChalleiige (1964)p.28.340 SOUTH WEST .4FRICA
for the success of any future policy. The frictional ingredients mut
be reduced to manageable proportions l."
Dr. Holloway then illustrates his point by referring to historical es-
amples, which lie sums up as follows:
"Polarisation has been the consistent factor in group relationships
throiighout the ages, Apartheid has been the only principle which
has worked through the ages, when these basic sources of friction
have been present 2."
31. Professor X. J. J.Olivier, a former Vice-Chairman of the Teclinical
Advisory Committee of the Western Cape Committee on Local Kative
Administration, a member of the International Conference on liace
Relations in IVorld Perspective (Hawaii rg54), and former Vice-Chairman
of SAI'SRA who is at present Professor of Hantu Law and Administration
at the University of Stellenbosch, wrote in an article first published in
1953 in the JozrrnalO)InlernationalAflairs:
"Yolitically, the policy of separate development envisages the
creation of a number of 13antu territorial units with an increaçing
rneasure ofself-government. The basicprinciples to be applied in this
connection is (sict) hat Europeans living in the native areas will be
citizens of the European state; natives living in the European area
will be integrated into the political rnachinery of the various
native areas. What the eventual form of collaboration between the
European sector and the various native sectors will be iç diflicult
to foretell, but itis quite possible that it rnay develop along federal
lines, eventually resulting in a United States of Southern Africa or a
Southern Africa Confederation. Only an arrangement of thissort can
do justice to the political and economic aspirations of thc native
peoples, and still guarantee the Eiiropeans' continued political exist-
ence. Such a policy aims at forestalling the race conflict that is inlie-
rent in the present situation by removing the root cause of the prob-
lem-the intermixture of the races. The same solution was put in
force in the former British India by its partition into the t~o scpa-
rate states of India and Pakistan 3."
D. The Churches
32.Just as in the political and intellectual lire of South Africa, so al50
in religious circles have the problems of race relations aroused much
thought, debate and, indeed, contr~\~ersy. Under the heading "Religious
Leaders" Applicants quote estracts from statements of members of the
Anglican Church (Archbishop de Blank and the Reverend Trevor
Huddleston s),the ATederduitse Gereformeerde Xerk (Dr. B. i3. Keet 7,
(the GereformeerdeKerk (Dr. Hugo du Plessis 6),the Catholic Cliurch
Archbishop Dennis E. Hurley 7),and certain resolutions of the Cottesloe
Hollowny, J. E., Apavthcid-A Chnlletzge(igli4)p. 29.
Ibid.p,. 30.
Aguirs.iVol.VII, Xo. z (1953)p.A141,0gaii oaSolution?",Jorrvî2ul of It~ter?ialiotiul
' IV,p. 2S3.
Ibid.. p. 595.
Ibid.p. 284.
' Ibid.p. 596. REJOISDER OF SOUTH AFKICA 34I
Consultation of tlie \iTorld Council of Churches l. Once again, however,
Applicants' "fairly selected cross-section of evaluations of apartheid"
excludes the substantial body of support found for the policy of separate
development in all the above cliurches, and the overwhelming support
found in some of them.
In referring to such support, Respondent does not wish to be under-
stood as signifying that views expressed by churches or their leaders are
fitinatters for introduction intothe rnerits of political debates. The ques-
tions whether church leaders should make public pronou~icements at al1
about matters whicli form the subject of practical political controversy,
and, if so, to what extent and within what limits, are in themselves con-
troversial, not the least amongst churchmen themselves. For their part the
Kespondent Government and its repcesentatives have, as far as possible,
refrriinecl lrom drawing the views of churches and their leaders into poli-
tical debates, whether in the national or international sphere, and have
not taken sides in controversies between churches or their members.
Theesposition which followsis not intended todeviate from this approach.
It is not directed at justification of Respondent's policies by the quota-
tion of fa\.ourable pronouncements, or bj the refutation of unfavourable
pronoiiiicements: the merits of Respondent's policies are dealt ~6th else-
whcrc. The sole purpose of the exposition iç to refute Applicants' one-
sided representation, and to indicate the wide variety of views that have
in Ciictbecn expressed, and are no doubt sincerely held, by various chur-
ches, and particularly mithin the various churches, hy tlieir leaders, mem-
bers and adherents. As will he shown, Applicants' "cross-section" is in
fact estremely unrepresentative of the major trends of thought among
and within the churches.
In particular, although quoting two of itsmembers, Applicants have
entirel- failed to reflect the major currents of tliought in the churches
which are in English cornmonly called the Dutcli Reformed Churches 2.
Unfortunately the views ofthese Churches are often not very rvellknown
ta outsiders-as stated by Dr. W. A. Visser 't Hooft, General Secretary
of the \.\'orld Council of Churches:
"Owing to the regrettable fact that so litîle of the relevant litera-
ture has been translateci into other langunges, one finds that other
Churches in South Airica or iriany other countries know very little
about the theological development in the Dutch Iieformed Churches.
Thus one can hear it said that their position with regard to race is
stillbased on the conviction that the Bantu belongs to the descend-
ants of Hani and must, therefore, be considered as permanently
destined to the roIe of servant. But that is not true. The present
thought in the Uutch Reforrned Churches is by no means on that
primitive level. The searching theological discussioii which goes on
in these Churches deserves to he taken very seriously 3."
IV, PI).284-295.
* Tliere are three of these Churches, viz., the Nederdtritse Gevefovnleerde Kerk.
the hrcdevdicilse Hervormde h'evkuan AfhRa, and the Gevefor~neerdeKerh. The
Nedevduitsclr Geretovmeeude ICerk is separately organizcd in various provinces, the
oldcst orniother Synod heing that of the Cape, known asthe Nederduitse Gerefor-
nreerde Kerk i~rSuid-Afrika (Dutch Reformed Church in South Africa).
qrisser 't Hooft,\\:. A.Visitto thSouth African Churches:A report to the Cen-
tral Cornmitteeof the LVorldCouncil of Churches on a visit tothe South African
Churchcs in April and May 1952, p. 14.342 SOUTH WEST -4FRICA
In the succeeding paragraphs, IZcspondent will give brief consideration
to the trends of thought in these Churches.
33. The largest of the Dutch Reformed Churches is the Nederduitse
GereformeerdeKerk. Through its niission work,. this Church has a long
history of contact with various non-White groups in the Republic of
South Africa as well as in other parts of Africa. Recently a high office
bearer of the Church gave the following resumé of its missionary activi-
ties:
". ..since the rniddle of the previous century this church lias entered
mission fieldsin vanous parts of Africa. .4ctually the sphere of her
missionary labour includes 14 territories in Africa with 17 laiiguage
and racial groups.
............... ........
The Dutch Reforined Church has rendered extensive service in the
fields of medical work, education and the provision of literature. At
present she has 34 mission hospitals where nearly half a niillion pa-
tients receive medical treatment annually. At our mission hospital
ritMorgenster in Southern Rhodesia, we receive patients fronl over
the whole of Southern Rhodesia as well as from the adjoining terri-
tories of Nyasaland, Northern Rhodesia, Bechuanaland, Y. E.
Africa and the Union of South Africa. The Dutch Reformed Church
has also undertaken pioneer work amongst the lepers in Southern
Rhodesia, Northern Rhodesia, and Xorthern Nigeria. At preseiit
slie still runç leper hospitals and settlements in Northern Nigeria
and Northern Rhodesia wvith 17,000 and more leper patients. In
three parts of Africa, the Dirtch Reformed Church by the grace of
God was the first to stoop and serve these former oütcasts of Afri-
can society, formerly buried alive.
Pioneer work was done arnongst the African blind in Soutliern
Rhodesia, Northern Khodesia and Nyasaland. This work is still
heing continued. Likewise schools for Afncan Deaf are to be found
in Southern Rhodesia, Northern Rhodesia, Johannesburg aiid tlie
Transkei.
...... .................
At present this ~hurch has undertaken the editing ofrefgioiiç rnaga-
zines in African languages, in English and in Afrikaans. No less
than four printing presses of this church are daily printing literature
forAfricans. At present a fund of threemillion punds isbeing raised
for the distribution of Christian literature in Africa.
To carry onits extensive missionary program the Dutch Reformecl
Church (European) with 720,000 full members annually contributes
~z,ojg,ooo-an average of more than 112 17s. fiercapita '."
34. In consequence of its missionar~ activities, the hTederduitseGerc-
formeerde Kerk enjoys considerable support from non-White groiips in
Africa. The officia1records of the Church reveal the following meinher-
ship figlires2:
tion of the Dutch Reformed Church in South Africa; copy of text obtained frtiis
officiai records and marked:"Address: Rev. W. A. Landman", yp. I1-13,
Save where otherwise indicated al1 information obtainedfrom Rev. il'.A.
Landman (referred to in footnote 1,para. 33, supra). REJOlSDER OF SOUTH XFRICX 343
, (i) Wlzites:
(ln South Africa, South IVest Africa and Central Africa, 1963)
Congregations. .................. 9I7
Mernbers. .................... 719,884
According to a sample tabulation of the South African Bureau
of Statistics (based on the 1960 population census) the number of
White adherents within the Republic of South Africa of the above
Church is 1,326,344 l.
There are 1,47 0 hite ministers and rnissionaries.
(ii) Coloureds:
Congregations .................. I66
Local units (as yet not with the çtatiiof a congregation) 16
Alembers ..................... 104,oqr
According to the Bureau of Statistics (based on the 1960 census)
the number ai adherents is 442,94 24
There are 30 Coloured ministers and 41 evangelists.
(iii) Bantu within theRepublic:
Congregations ................... 308
Memberç ..................... 123,536
According to the Bureau of Statistics the nurnber of Bantu
adherents of the ThveeDutch Reformed Churches was 556,898
in 1960 3. The number.of adherents of the other two Dutch Re-
iormed Churches is relatively çmall. The figure for the Nederduilse
GsreformeerdcKerk, after rnaking allowance for the other tbvo
Churches, could be between 400,000 and 500.000.
A cornparison with earlier census figures shows that the influence
of the Dutch Reformed Churches has increased steadily. The total
res ~f adherents were: 1921: 109,888; 1936: 154,080 '; 1946:
fi6r7,4; 1951: 326,290 5.Increased as a percentage of the total
Bantu population, these figures represent : 1321 : 2.34per cent. ;
1936:2.34 percent. ;1946:3.41 per cent.; 1951:3.81per cent.; 1960:
5.10 per cent.
There are 87 Rantu ministers and 581 evangelists.
(iv) Banlu outsidethe.Republic :
(Rhodesia, Zambia, Malawi, Northern Nigeria, etc.)
Congregations and outposts (preaching posts at schools
in rural areas).................. 2,5rI
Mambers. .................... 134,912
Adherents .................... ~OO,OOO
Mission Schools .................. 2,073
Scholars ..................... 130,000
Teachers ..................... 3,800
Catechumen ................... 50,000
l Population Census rgGo:Sample l'abulaiion, No. 6-ReligioAli Races, p2.
2 Ibid., p16.
3 Ibid., p. zg.
4 Population Cençus 8 BIa1951,Vol. III. U.G. Xo6211954,p. 66.
5 Ibid., VoVII, U.C. No.3811959,p. 76.344 SOUTH WEST AFRICA
There are 68 Bantu ministers and 65 evangelists. Here also
there are signs of healthy growth-in 1955 the membership was
only 108,zoj as against the above figure of 134,912 in 1963 l.
35. By reason of their close identification, as indigenous African
churches, with the peoples of South Africa, the nutch Reformed Churches
have traditionally been much concerned with the problem of relations
between various population groups.
In regard to a conference held in 1950, Dr. W. A. Visser 't Hooft
ivritcsas follows :
"In April 1950, the Federal Mission Council which represents the
four fedcrated Dutch Reformed Churches as well as the three
Dutch Reformed Mission Churches, held its conference at BIoem-
fontein. This conference was an attempt to define a constructive
policy concerning the Bantu. The basic principle which permeated
al1discussions and resolutions was that of apartheid, but of afiartheid
in a very specific sense, namely as a 'proceçs of development which
seeks to lead each section of the people in the clearest and quickest
way to its own destination under the graciouç providence of God'.
It was emphasised that the rights of every man were to be repeated
and that permanent subordination of one group to another should
not exist in any realm of life. The only way in which these aims
could ultimately be realised was by total separation, which would
mean the conversion of the native areas into true homelands of the
Bantu with full opportunity for development and self-government
and the replacing of theBantu in. . .the pcesent economic structure,
which would entai1 great sacrifice on the part of the European. But
a reorganisation which seemed to the conference quite inevitable
for, as it was put in one of the documents: 'no people in the world
worth their çalt will be content indefinitely with no Say, or only an
indirect Say, in the afiairs of the State or inthe socio-economic or-
ganisation of the country in which decisions are taken about their
interests and future' 3." (Italics added.)
It may be noted in passing that althoughDr. Visser 't Hooft doubted the
practicality of the 1950 resolutions 4,he did not question them on ethical
or religious grounds.
36. In 1956 a National Congress on the Future of the Bantu was held
at Bloemfontein under the joint auspices of the South African Bureau of
Racial hffairs, the Federation of Afrikaans Cultural Societies and the
three Dutch Reformed Churches to discuss the subject in the light of the
then recently released findings and recommendations of the Commission
for the Socio-Economic Development of the Bantu Areas in South Africa,
usually referred to as the Tomlinson Commission.
The following resolutions were, inter dia, adopted:
The 1955 figurehas been furnished by the Information Bureau of the Dutch
Reformed Church, Johannesburg.
Thisrefers to the federal organization betweenthe four provincial Synods of
the Aredeyduitse Gereformeerde Kerk: vifootnote 2in para.32, supra,p. 341.
Visser 't Hooft, WA.,VisiltatheSouth Africa?~Chuvçhes:Areporttothe Central
Cornmittee of the XVorldCouncil of Churchesa visito theSouth AfricanChurches
i n April andMay, 1952, p.17.
' Ibid., p. r8. REJOINDER OF SOUTH AFRICA 345
"6. (a,) This Congress is convinced that in South Africa no possibilitp
exists of a peaceful evolutionarl. integration of iYhites and
Bantu into a unitary society. A policy of integration will neces-
sarily lead to increasing racial tension and conflict and eventu-
ally tothe destruction of the national existence of one or both the
groups; for this reason this Congress unambiguously rejects the
policy of integration as a possible way in which a solution for
this problem may be found.
(b) On the contrary the Congress isconvinced that the oiily accept-
able policy which is also practicable, is that based on the prin-
ciple of separate development whereby provision is made for
the existence of separate comrnunities in their own territories
nlhere each community wjll have the opportunity for a full life
and development, and be assured of an unimpeded existence
and right to self-determination; and furthermorc the Congress
expresses it as its decided opinion that for the Whites and the
Bantu there can be no other acceptable policy leading to a
satisfactory solution.
7. This Congress regards it as a necessary foundation and consequence
ofthe policy of seyarate development that the Rantu should progres-
sivelv be afforded opportunities in their own areas of participation
in their own administrative affairs and for political self-expreçsion,
and wishes in this connection :
(i) application of the systemionof BantuintAuthorities;nd successful
(ii) to make a friendly appeal to the Govemment to pay particular
attention tothe training of Bantu chiefs and the further develop-
ment of the Rantu Authorities system '." (Translation.)
37. ln Narch 1960 a number of prominent leaders of tlie hTederdzril~~
GereformeerdeKerk (including the moderators of the different synods)
published a statement in Cape Town which included the following pas-
sages :
"The Nederduitse Gereformeerde Kerk has in the past demons-
trated clearly byits own policy and by pronouncements of itssynods
that it can justifyand npprove the policy of independent, autogenous
development, provided that it isapplied in a fair and honourable
aay, without affecting or injuring the dignity of the person.
The Church has also accepted that the policy will, particularly in
its early stages, necessarily give rise to a certain arnoiint of disriiption
and persona1 inconvenience and deprivation, as for instance in the
case of slum clearance. The whole pass systrm should be seen in this
Iight 2."
Further sta ternents by or on behal f of the i\TederduitseGereformeerde
Kerk are considered below with reference to the Cottesloe Conçultation 3.
1 Volkskongresoor die ToekonisvaizdieBanioe: Referatecn besluite: \'olkskon-
gres, Bloemfontein.28-30Junie 1956. pp. 137-138.
"nformation supplied by Dr. F. E. O'Brien Geldenhuys, Aloderator of the
Northern Transvaal Synod of the Nedeyduitse Gereforweerdc Kerkfrom his officiai
records.
Vide particularly paras46 and 49.infra.346 SOUTH WEST AFRiCA
38. It will be apparent from the above that Dr. B. B. Keet ' represents
a minority point of view in the YederdzsitseGereformeerde Kerk. His work,
The Elhics of A+artheid, from which an extract isquoted in the Reply
has indeed been the çubject of detailed criticism by a felIow theologian,
Dr. A. B. du Preez, Professor of Christian Ethics in the Theological
Faculty of the University of Pretoria 2,who states in general:
"In his most recent work The Ethics of Apartheid Prof. Keet pre-
sents nothing else than a caricature of the idea of apartheid, ~4th-
out taking into account the connotation of the term as indicated in
the history and association of his people with the Non-\Vhites 3."
The çmallest of tlie Dutch Reformed Churches is the Gereformeerde
K:%+. Applicants quote Dr. Hugo du Plersis, a rnernber of the theologi-
cal faculty of this Church, as one of the "religious leaders" reliedupon
by them In January 1961 the General Synod of this Church adopted
the following resolution :
"From the fact that God gives each people its place (Acts 17:26),
it follows that if two peoples or races live in the same territory and
each wishes to preserve its own identity, inexpressible tensions arise.
Territorial separation of peoples is one of the material factors in
counteracting undesirable intermixture and thrcats to the national
existence. Whcre this cannot be achicved, tlie conditions lead to
absorption of the one by the other through miscegenation or violent
destruction of the national identity. From this it follows that a
people which wishes to preserve its identity, rnust make the sacrifices
demanded for the acquisition and preservation of its own father-
land, inlev alia. by recog-nising the rightful claims of other peoples
to their own fatherland. The idea of a 'rnulti-racial peopIe in a single
territory' must be rejected on Scriptural grounds 6." {Translation.)
40. Applicants' quotations from an article by Dr. Hugo du Plessis
mal give the impression that the author is in disagreement with the
above view of his Church. Such is,however, by no means the case. In-
deed, his cornplaint is that separate developrnent is not bejng irnple-
mettted fully and speedily enough. Imrnediately after the passage quoted
by Applicants the author says:
"We must learn to adopt a more altruistic attitude, namely, to
promote differentiation in the interests of the Rantu themselves.
Integration is not to their advantage and for this reason we advocate
autochthonous development. This is quite in order, but, we must
add, permanent white domination and retarding of the freedom and
advancement of the non-White are not to their advantage and not
in order. ive must be inspired with the ideal of helping them to
develop towards a happy and prosperous independent national
Quoted by Applicants at IV, p.284.
Videdu Preez, A. B.,Insidethe SouthAfricanCrucible (1959).
Ibid.,p.221.
' Tts total mernbership in 1963 was 57.223 Imites, 637 Colaureds and 8,578
Bantu accordidg toCawood,L.,TheChürches aridRace Relations in South Africa
.'A .
'IV, p. 284.
van die Gereformeerde Kerk inyuid-~frika oor ~asseverhoudin~e';(~gbï),p.n74. REjOlXDER OF SOUTH AFRIC.4 347
existence. Wealthy relations are only possible if the Bantu's racial
dignity, identity and right to their own country is acknorv-
leclged.
For thjs reason me reject the utopisn ideal of unity in a diversitÿ,
White and Rantu diversity, in a common fatherland and under the
same government as pleaded for by hlrs. hl. 13allinger.amongothers,
in 'SouthAfrica the Road Ahead'. Even if it was possible, it would
leiid to something more than the crossing of barriers l."
In a more recent work, Dr. du Plessis said thc foIlowing:
(a) "On Scriptural grounds we can fully associate ourseIves with a
just policy of autogenous development and we even prefer it to a
policy of integration which implies that the sou1 of the Bantu
must be killed and his identity elirninated 2."
(b) "The only righteous policy which will benefit both us and the
Bantu, is total segregation which must be implemented gradually
but as fast as possible .. ."'
(c) "If, however, the ideal of a great future of independent states,
which will be accompanied by complete segregation, is the objec-
tiveand al1energies are enlisted to this end, the present segregation
measureç may be temporarily approved provided that, as regards
the permanent Bantu inhabitants in the White areas, they are
gradually removed, until a state of balance and stability is achiev-
ed, when al1 discriminatory apartheid against such Rantu must
fa11away, although they can still live in separate residential
areas and the industrial labourers among them be employed in
parallel industries, while migrant labourers are only allowed in
for brief periods. In the interval. as the Government proposes,
al1 Bantu who live jn the White territories, may be linked with
the political organization of the Bantu homelands 4." (Translation.)
qr. The-third ~hurch cornrnonly included in the description Dutch
Keformed Churches is the Nederdzcilsch Weruormde Kerk van Afrika.
This Church abo supports the principles of separate development, as
will appear {rom its statement at the Cotteçloe Consultation '.
42.-The Anglican Church has on the whole adopted a critical attitude
towards the policy of separate development, at least as far as its clergy
are concerned 6.Itmust be borne in mind, however, that Anglican clergy-
men are, for the most part, immigrants who sornetimes spend relatively
few years in South Africa before leaving again, as was the case with
.4rchbishop de Blank and the Reverend Mr. Huddleston, quoted by
' Geyser, A. S. et al., Delayed rlc.%nnEcumenicai Witness from the Afrikaans
Speaking Church, p. 65.
DU l'lessis, H.'lNuwe Deuvbvaah (19631, p.26.
Ibid.. pag.
* IbEd.,p.30.
Vide para. 48, ilafra.
In a recent publication (Cawood, L.,The Churchcs and IZaceRelationin Sauth
Ajvica (i96qJ. p5).it is said that "there are many ordii>ary church members who
hold racial views diametrically opposed to those expresindofficial statements by
their churches. A prominent Anglican leader recently acknowledgedaipress state-
matter of race relations".at gulf between Ourprofession and our practiceinthe34& SOUTH WEST AFRICX
Applicants '.Their knowledge of the country, its pcoples and languages
is often very inadequate, or one-sided, leading to judgments which are
faulty. It is symptomatic of this situation that -4rchbishop de Blank felt
constrained to issue the following apoIogy at the end of the Cottesloe
Consultation =.
"In Our conviction that acquiescence in a policy of discriminatory
segregation gravely jeopardizes the future of the Christian Faith
in South Africa, we believed-and still believe-that it was right
to speak urgently, clearly and uncompromisingly. But in the light
of what we have iearnt here and the information now put at our
disposal, we confess with regret that in the heat of the moment we
have at times spoken heatcdIy and, through ignorance (for which
ignorance we cannot be dtogether held responsible), have cast
doubt on the sincerity of those who did not accept the wisdom of
such public action.
NevertheIess the delegates of the N.G.K. [Nederduitse Gerefor-
meerde Kerk] have met with us in the fullest fellowship and we have
been deeply moved by this spirit of brotherly goodwill. Where, in
the past, we have at any time unnecessarily wounded Our brethren.
we now ask their forgiveness in Christ j."
43. As will be noted below 4,at the Cottesloe Consultation the oppo-
nents of government policy appeared to be criticai of the application
rather than the principle of separate development. This seems to have
been the attitude also of Archbishop de Blank.
At a meeting of the B.B.C. Brains Trust on 6 July 1955 , rchbishop
de Blank is recorded as having confirmed that the foltowing statement
attribilted to hjm was correct :
"1 don't feel that apartheid, in the sense that it means a separate
development of the races, is wrong in itself 5."
And during a visit to the United States of America in 1958 , e stated:
"My chief quarrel with apartheid is in the way legislation is forrnulated
and implernented." He added that for himself he thought the races
preferred to be independent of each other rather than integrated 6.
44. Altliough the attitudes expressed by Archbistiop rle Blank are
commonly found amongst Anglican clergy (although usually not in such
?n extreme form), some prominent members of the Anglican hierarchy
ln South Africa nevertheless support the policy of separate development.
Thus, for example, Bishop B. W. Pcacey, who worked for many years in
East Africa as well as South Africa, wrote in 1953:
"An examination of the ptima facie evidence for a policy of
differentiation has led to a confirmation both of its Christian Spirit
l IV,pp. 283-284 and 595-596.
AS to which,vide paras.42-45,infra.
' Collesloc Co~isultation: The Report of the Consultation among SouAfrican
Johannesburg. pp. 81-82.IVorld CouncilofChurches7 ,-1.1 Dec. 1960 at Cottesloe,
' Videpara. 47, infra.
' Steward, A., The ChallerrojChange (igGz) pp. 43-44.
Segal.H., PoliticaAfrica; A Who's Who of Personalities and Parties (19611,
P.69. REJOISDER OF SOUTH AFRICA 349
and of itsjustice to al1races concerned. What then? It would seern
to be necessary to have laws to implcment it l."
And :
"[ilt is not only the European culture that we have to consider, tlie
attempt must be made, under every consideration of justice, to give
to Bantu culture its opportunity to develop to meet a new situation:
neither of those cultures is static, develop they must, and in justice
to both 1can see no reason why either should lose the many splendid
characteristics which both cultures have. A policy of assimilation
seems to me a policy which goes fonvard in fatalism, not in faith.
A policy of differentiation seems to me to express what is common
to al1cultures, to learn to survive in the face of new circumstances =."
45, In 1960 the World Council of Churches arranged a consultation,
generally known as the Cottesloe Consultation, with leaders of theeiglit
South African Churches which were then members of the Council, viz.,
the Bantu Presbyterian Church of South Africa; the Church of the Pro-
vince of South Africa (Anglican); the Congregational Union of South
Africa; the hlethodist Church of South Africa; the Nederduitse Gevelor-
meerde Kerk of the Cape Province and the Transvaal; the Nederduitsck
Heruovmde Kerk van Ajrika and the Presbyterian Church of Southern
Africa. Applicants refer to some extracts from the Consultation State-
ment issued at the close of the Conference j.They refrain, however, from
citing other passages and contemporary statements which demonstrate
that the participants in the Consultation by no means rejected the policy
of separate development. In fact, the opening paragraphs of the State-
ment included the following:
"The general theme of our seven days together has been the
Christian attitude towards race relations. We are united in rcjecting
al1unjust discrimination. Nevertheless, widely divergent convictions
have been expressed on the basic issues of apartheid. They range on
the one hand from the judgment that itis unacceptable in principle,
contrary to the Christian calling and unworkable in practice, to the
conviction on the other hand that a policy of differentiation can be
defended from the Christian point of view, that it provides the only
realistic solution to the problems of race relations and is therefore in
the best interests of the various population groups.
Although proceeding from these divergent views, we are never-
theless able to make the following affirmations concerning human
need and justice, as they affect relations among the races of this
country. In the nature of the case the agreements here recorded do
not-and we do not pretend that they do-represent in full the
conviçtions of the member churches '."
46. It is clear therefore that the passages quoted by Applicants do not
irnply any condemnation of the policy of separate development as such.
' Peacey, B. W., "Kace Relations in South Africa: Yrinciples and Policies",
Jourrzul of Racial Aguirs (SABU), Vol. 4, Xo. 3, Apr. 1953,p12.
* Ibid.. p16.
IV, pp. 284-285.
' Cottesloe Consultation: Reportthe Consultation among South Afncan Mem-
ber Churches of the ïVorld CouncofChurches, 7-14nec. 1960 at Cottesloe. Johan-
nesburg (19Gr). p73.35O SOUTH \TEST AFRICA
This was emphasized at the time by the representatives of the hTeder-
duitse GerejormeerdeICerkin the following statement :
"The delegations of the Nederduitse Gereformeerde Kerke of the
Cape and Transvaal wish to state that we have come to consult
with other churches under the Word of God and with deep concern
for the various and complicated problerns of race relations in the
country. We realise with deep Christian concern the needs of al1
the various population groups and that the Church has a word to ,
speak to them.
We wish to confirrn that, as stated in the preamble to the Con-
sultation Staternent, a policy of differentiation can be defended
from the Christian point of view, that it provides the only realistic
solution to the problems of race relations and is therefore in the best
interests of the various population groups.
We do not consider the resolutions adopted by the Consultation
as in principle incompatible with the above statement. In voting
on Resolution 15 1the delegations of the two churches recorded their
views as fol1ows:
'The undersigned voted in favour of Point 15, provided it be
clearly understood that participation in the government of this
country refers in the case of White areas to the Bantu who are
domiciled in the declared White areas in the sense that they have
no other homeland' 2."
47. It is interesting to note in more detail the differences in approach
to the principles of apartheid (asit was referred to) which emerged from
the Consultation. The following is an extract from the discussionson this
aspect :
"The most serious objection which rnay be raised against the
apartheid policy is that it irnplies a concealed form of discrimination
based on colour or race. It is just here that the difference between
differentiation and discrimination was stressed.
Where there are real and natural differences between groups, or
profoundly different needs and circumstances-the kind of situation
which arises spontaneously in societ it is reasonable that these
different gmups should be providel%r difkrently, and treated
differently. This recognition in practice of natural differences may
be described as diferenliaiion.
Where, however, groups which differ in race or colour have never-
theless equal needs and similar circumstances-the kind of situation
that is developing in Our urban, industrial society-it is wrong to
exclude some groups, by degrading, uncharitable and slighting
deprivations, from provisions and treatment enjoyed by one group.
This denial in practice, on the grounds of race and colour, of equal
needs and similar circumstances rnay be deçcribed as discrimination.
So understood, differentiation may be defended as a matter of
principle, but not discrimination. It was readily admitted that dif-
ferentiation has in sorne cases degenerated into discrimination; but
it was urged that discrimination could not be eliminated by abolish-
ing differentiation. Further, it waç pointed out that differentiation
lQuoted by Applicsnts at IV, p.285.
CoflesloeConsullalio:op.cil., p80. RE JOINDER OF SOUTH AFRICA 351
in our society is not the product of the policy of the present govern-
ment. The governrnent fias given its own statutory expression to a
situation uthich has existed for a long time and which has been the
result of an historical process.
This discussion, mhile serving a useful purpose in the exchange of
ideas, did not issue in any generally agreed statement. People as
deeply involved as we are in a human situation find excessive dif-
ficulty in terms rather than in ideas, are naturally averse to words
which have become shibboleths, and which have acquired dangerous
connotations in contemporsry usage. There isan impoverishment in
language in words which we no longer dare to use.
In one sense, apartheid means the ideal of optimum independent
development based on the recognition in practice of natural dif-
ferences; in another sense, the words mean the embodiment of thk
policy in the legislative programme of the present government; in
yet another sense, the same word means the application of this
legislation by individuals to individuals. Some of us were prepared
to defend the ideal, and the intention of the government in its
legislation as a sincere atternpt to embody this ideal; others felt
that aparlheid must be 'udged by its application in Our society;
and &en understood as t 1e,segregation of racialgroups by statutory
compulsion, carried through without effective consultation, and
involving discrimination against the groups affected, it was felt by
these, must be condemned l."
It is tbe noted that the objections raised by the opponents of separate
development related not to the principle thereof but to certain alleged
defects in its application.
48.At the conclusion of the Consultation. the following statement was
made by the delegation of the Nede~duilschHeniormde herk van Afrz'ka:
"\ire as delegates of the Nederduitsch Hervormde Kerk are
grateful for the opportunity we had to listen to, and partake in,
the witness of the different: churches.
ii7e wish, however, to state quite clearly that it isour conviction
that separate development is the only just solution of our racial
problems. We therefore reject integration in any form as a solution
of the problcm. The agreement that has been reached contains such
far-rcaching declarations that we cannot subscribe to it. We can
therefore not identify ourselves with it.
Ive furthcr yish to place on record Our gratefulness to the Govern-
ment for al1 the positive steps ithas taken to solve the problem,
and to proniote the welfare of the different groups.
The Nederduitsch Hervormde Kerk will in future as in the past
accept its responsibilityto witness to the government and people in
accordance with the Word of God =."
49. Applicants also refrain from inforrning the Court that the Cottesloe
Consultation gave rise to furtlier debate within the synods of the Cape
and Transvaal hrederdttitse Gereformeerde Kerk. 1 he Cape Church
expressly reaffirmed its attitude regarding the policy ofseparate develop-
ment and-
CoitesloConserltati:op. cil.pl). 23-24.
Ibid.p.79.352 SOUTH [TEST AFRIC:\
"[declared] ernphatically that a policy of differentiation is well-
founded scripturally, offers the only realistic solution for the
problems of race relations in our country, and therelore best sen-es
the interests of al1 population groups l". ('rranslation.)
Regarding the specific resolutioni of the Consultation, the Synod
declared :
"Althorigh some oi the resolutions ... would not fier se be un-
acceptabIe, ifdifferently formulated, the meeting cannot associate
itself with the findings for the following reasons:
(a) The effect of the whole and the combined witness of the reçolu-
tions is such as to affect and undermine the policy of separate
development ;
(b) some of the findings are pertinentiy iri conflict ivith the principle
and policy of differeniiation, e.g., points ... in which political
integration is advocated, and points . . . in which, by an
impermissible application of Scripture, social and ecclesiastic
integration is advocated;
(c) a large nixmber of the resolutions deal with niatters of practical
politics on which the Church as institution should ~iotexpress
any opinion unlesç one or other clear Scriptural principle iç
involved 2."
The Transvaal Church decided at a meeting of its General Synodal
Commission on z March 1961 that an ad hoc Commission should consider
the merits of the Cottesloe resolutions. At the same time the Synodal
Commission reaffirmed that the Church-
". .. haç also as regards the political sphere always been in favour
of a policy of differentiation or separate development which is based
on the principle of Christian trusteeship 3". (Translation.)
After the adhoc~ommission had reported,the Synod resolved generally
that any of the Cottesloe resolutions which were in conflict with the
formulated policy of the Church, were not acceptable to the Synod 4.
It also espressly resolved as follows:
'The ~inod reaffirrns the Church's acceptance that it iç a part
of its vocation to proniote the higl-iest interests also of the non-
European population groups and is convinced that this can best
be acliieved by following the historic policy of differentiation
(Translation.)
From the facts set out above, it is clear that the discussions at the
Cottesloe Consultation, as well as its aftermath, clearly belie any sugges-
tion that the Churches participating therein were united in opposing the
policy of separate development.
' Handelinge van die Vier-en-DertigsteVergadering van die Hoogeerwaarde
Sinodevan die SederduitseGereforrneerde Kerk in Suid-Afrika: Gehou in Kaapstad
op Donderdag. 19 Oktober 1961 en volgende dae (Sinodale Handelinge-rlcta
Synodi). p.50.
* Ibid.,pp,50-51.
Handelinge (Acta) van die Vyf-en-Twintigste Sinode van die Ned. Geref. Kerk
van Transvaal : igfii, 350.
+ Ibid. pp. 382-383.
Ibid., p. 382. RE JOISDER OF SOUTH riFKICA 353
jo. As far as the Catholiz Chiirch is concerned, Applicants are correct
in saying that certain archbishops have been critical of lzespondent's
attitude l.Applicants do not, however, mention that other prominent
men in the Churcli find no objection to the principles of Kespondent's
policies. On 18 February 1964 Archbishop W. P. Wlielan, Director of
Press, Radio and Cinerna of the Administrative Board of the South
African Catholic Hisliopç' Conference, issued a statement in questioii-
answer form of wliich the following are extracts:
"Q. Are you dislurbedby the situationin SoarfhA.fricu?
A. l'es, and no. Yes, in so far as South Africa has been made the
object of criticism that is largely prejudiced or, to say the least,
uninformed.
Also because al1 the fair promises concerning otlier parts in
Africa have proved to be such a grievouç disappointment.
No-.because it is clear that the South African situation, in spite
of its defects, is stable, secure, and full of prospects for future
developmeiit.
I believe that when one considers a country's socio-political
future it must always be against the background of its economic
possibilities.
In this respect South Africa offers unrivalled possibilities,
unequalled anywhere in Africa.
For this reason 1 foresee a happy issue out of Our current
social and political difficulties, including those arising from the
niulti-racial character ofur society.
Q. Will thi stecessarilyinvolvtheabandoning ofthe apartheid policy?
A. Not necessarilu.
Q. But isaparllteid not an injusticwhichmust go?
A. It al1depends on what yoii mean by apartheid.
Q. Wkat do you mead
A. It is crucial in any discuçsion on this subject to distinguish
clearly betwccn the idea of afiartheid or separate development,
or whatever else it may be called, on tlie one hand, and, on the
othcr, the actuallaws and regulations which the public authori-
tiesmay niake to implement the thzory.
The question to be asked is whether or iiot injustice is in-
herently involved in the policy of separate development as it 1s
being current ly pursued.
Q. 1s the theory 01 aparthid or separale develofimentnot in itseli
vicz'ous?
A. There isno teaching of the Church in opposition tothe idea of a
state composed of a number of national or racial groups, main-
tained in their separate and distinct identity by the state of
which they form a part. This is cleafrom the Church's attitude
concerning the rights of national minorities, so hotly debated
during the first50 years of this century.
This was reiterated recently in Pope John's encyclical Peace
on Eartli. 'I'heChurch fias often declared that public authorities
lIV. p. j9G.354 SOUTH WEST AFRICA
have an obligation to assist tlie cultural and racial groups in a
pluralistic state in their distinctive development.
Q. Can itbe said tlzatthe Church does not regard thedestrlrctiott of
such grou#s as a matter of indifference?
A. Tliat is correct. The Cliurch regards as immoral any policy aimed
at levelling such ethnic groups into an amorphous cosmopolitan
rnass.
The Bishops of the United States have even gone so faras to
say that these heterogeneous racial and cultural groups have an
innate right to exist.
This is also the attitude taken up by the United Nations in
1948-4 9hen it condernned genocide, which was estended in
rneaning to include the physical destruction or enforced in-
tegration not only ofracial groups, but of national and religious
groups as welI.
Q. Nus South Africarz 'apartheid' been oflcially condemited by the
Church?
A. ln 1958, Catholics were informed bÿ the chairman of the ad-
ministrative board of the South African Catholic bishops'
conference that they were perfectly free to vote for anj. of the
parties contestingthe gencral election.
This response coiild not have been given ifany party Iiadlieen
judged to be advocating a policy which, considered as a whole,
was immoral.
Q. But does not the $olicv of sePurufedevelopment, which involves
extensive Governmentinterferencein theEioesof somiznyiiidividuals
bring with if necessarily an undzreinfringemegrtof humnir rightd
A. It is difficult to knowith certainty.
The highly cornplex structure of modern society has forced
governments everywherc to interfere more and more in the lives
of their siibjects.
This is especially true of the welfare state, where virtually
every aspect of life is regulateby public authorities of different
kinds.
Esactly where the boundary line lies, belrond whickia govern-
ing body may not legitimately go, is impossible to discern in
general.
It has to be judged in each particular case. So n.e read in
Pope John's encyclical Peace on Earth: 'Indeed the whole reason
for the existence of civil authorities iç the realization of the
cornmon good, it is clearly necessary that in pursuing this
objective they should respect its essential elements, and at the
same time conforrn their laws to the needs of a given historical
situation.'
Q. Swvely 'apartheid', which denies the democratic $riszci$le of one
man, one vote by excluding 80 par cent. of the populationO/ the
eleclorate,cannolbereconciledwith Christianity?
A. The first point to make clear is that the Church has never
considered democracy to be the only form of government
compatible with Christianity. REJOINDER OF SOUTH AFRICA 355
In Peace on Earth, Pope John wrote: 'It is inipossible to
determine once and for all, what is the most siutable form of
government; or liow civil authorities can niost effectively fulfil
their respective fiinction ...
In determining tlie structure and operation of government
which a state is to have, great weight has to be given to the
historical background aiid circumstances of given political com-
munities, circunistances whicl-iwill Vary at difierent tirries and
in differcnt placcs.'
Even in a State which is democratic in structure, the onc nian,
one vote principle is not always desirabie.
Thus the Pope goes on: 'It is in keeping with their dignity as
persons that hiiman beings should take an active part in govern-
. ment, although the manner in which they share in it will depend
on the level of developntent of the political cornmunity to which
the. belong. '
ive know, for instance, how restricted the electoratc \vas in
ancient Atliens: the home of democracy; and evcn ta-dav it is
not considered a grave injiistice that woinen in Switzerlaiid have
no vote.
In recent tirnes we have seen too many cascs of the onc man,
one vote slogan beiiig used asa pretext by dernagogues to seize
power which they exploit for their own ends.
A democracy based on a wide electorate seems to sectire the
common good only in highly developed and hornogeneous
çocieties. This is freely acknowledged in Afnca.
This, too,was in the minds of the South African bisliops in1952
when they declared that 'the great majority of non-Euroyeans,
and particularly the Africans, have not yet reached a stage of
development that would justify their integration into a liomo-
geneous society with the European.
The associatian of incn, coming together in societies, gives rise
to other rights which can be termed secondary, derivative or
contingent. They vary greatly according to the type of society
evolved, the recognition accorded thern and tlie qualifications
necessary to possess thern.
'Among such areto be included the right to vote in the election
of legislative hodies.'
In South Africa tliere isa.growing tcndency to accord to non-
Europeans an active participation in the affairsof the country.
That these diHcr for different groups isin keeping with Pope
John's statement quoted above.
In the Cape, the Coloured people have elected representatives
in Parliament. The recent establishment of the Transkeian
Parliament, withitç considerable power of local government, and
the formation of the National Indian Council, are further new
beginnings 1."
51. Archbishop \.Vhelanlsstatement gave riseto considerable comment
and discussion. It was welcomed, inter aEio5, by a reguiar contributor tb
a Catholic .monthly who wrote:
1 The Cape Times,19 Feù. 19643j6 SOUTH \l'EST AFRlCd
"As 1see tlie matter, the Kational Party has, since Dr. Verwoerd
attained control, changed radically as rcgards its racial policies. The
exaggeratcd segregation policy under permanent European domina-
tion of the past has changed completely to n policy of dividing up
Soutli Africa into a number of sovereign iiidcpcndent Bantustans
and one European State. 1 am glad thrit the Natioiial Party has
turnecl ri sornersault. It means that al[ idc:ilistic objections from
'moralistic' circles fa11away, and that the whole matter can be
discussed on a piirely tcchnical level. 1finclit difficult to understand
how even tlie most serious~idealists can condcmn the Governrnent
when it wishes to grant fatherlands to sliecified population groups.
To provide ripeople with a fatherland is certainly no moral trans-
gression l."
........................
"3Iillionsoi us-perhaps al1 of lis--are of the opinion that the
racial situation in our country cannot remain as it is at the present
moment. Most of us are also aware that whatever change is brought
about it cannot occur with one dap of thtinder. 13cforcus we have
a clear clioicc of three ways: unconditional complete integratiori
in the social, economic and political spheics, of all oiir racial groups
('Shake tlic 13ottle1),conditional and partial integrrition, or: Separate
Devclopincnt. Every citizen-alço every Cntholic-is completel~f at
liberty to make Iiis own choice.
In iny pnrticular circumstances it is almost self-evident that I am
acquainted with the political convictioris of rnnny of my co-religio-
nists. 1 am fully aware of the fact that al1the political parties in
the Iiepublic have Catholic supporters. It is iiot in the least my
intention to sail under false colours. 1 plrsonally do certainlv not
siipport the Xational Party, but the açsumption that Catholics muçt
bjr reaçon ai thejr faith oppose the prescrit Government is the most
complete nonsense. To be completely. candid, the most fiery Katio-
nalists I liriow are Catholics. In passing, 1 cannot help thinking of
my higlily respectcd friend, a priest living somewhere in Katal. He
sometimes gives me a very formal scolding if I criticise the National
Party in public 2." (Translation.)
52. licsponderit will conclude this discussion of trends of tliought
arnong churclies in South Africa by quoting a Jewish religious leader.
Rabbi Siiiger of Johannesburg said in an address nt the Adas Congrega-
tion Synagogue.Connecticut Avcnue and Portcr Street, Washington, D.C.,
on S November 1957:
"hIany of you might have gained the impression that some of the
laws enactcd in South Africa have a represçive or cliscriminating
effect; but Iwant to impress on you-and 1 Say this from a pdpit
of the House of God-that no single Act has been passed in South
Africa whicli iç not wholly intended to protect people who are unabie
to protect themselves 3."
1 Die Brug Tussca Protestant en Katoliek, Jaargang 13, Nr. 4, Apr. 1964,p.4.
2Ibid., p. 5.
3South AfricaToday(newsletter issued bytheSauth African Information.Adviser,
Ottawa), 31 Dec. 1957. p.IO. II . . REJOINDER OF SOUTH AFHICA 357
53. The present discussion relates to trends of thought amongst South
Africans, and for that reason views espressed by foreign churchmen are
not referred to lierein. Respondent nevertheless wishes to point out that
acknowledgement of the justice and equity of the policy of separate
developnlent is round to an increasing extent also among religious leaders
in other parts of the world, as will be shown in due course
E. AuthorsandJournalists
54. From what has been said heretofore, it will already be obvious that
the same divergence of political views would be found among authors and
journalists as among other sections of thc population. Applicants quote,
in this catcgory, Air. Alan Paton 3, Mr. Stanley Uys 4,Mr. Patrick van
Rensburg 5, Mr. Colin Legum and an editorial from The Star
Referencc has already been made to the active political career of Mr.
Paton a. The Star is a newspapcr publisheci in Johannesburg. Politically it
supports tlie oppositio~i, and rnany of its leading articles are critical of
governmcrit policy, or at least certain aspects thereof. Needless to say The
Star is not the only newspaper in thc country wliich supports the oppo-
sition parties-in a country in which freedom of speech operates, and
which isfaced wjth comples and contentious problems, one would expect
a certain amount of nelvspaper criticisrn 9. By the same token, one would
also cspect ncwspaper support for government policies, and this expec-
tation tvould also not be disappointed. Great newspapers such as Die
Bztrger,Dngbreek,Die Vaderland, and others support the princiyles of
government policy and norrnatly also the detailed application thereof.
Al1these nervspapers emploi- journalists and coIumnists wlio have written
in favour of government policies. Hnd Applicants really attempted a
"fairly selected cross-section of evaluations of apartheid" lD by authors
and journalists, they would have been cornpelled to devote a considerable
part tiiereof to views of writers who advocate or propagate the policy of
separate dcveloprnent. Instead, they limit themselves to opponents of
govemmcnt policy, and even there they show poor discrimination in their
choice oi persoiis. Thuç they under-represent the category of responsible
and infliicntial critics, and concentrate on nonentities like Patrick van
Rensburg and persons such as Stanley Uys and Colin Legum who have
attained a certain rneasure of notoriety from the very irresponsibility of
some of their writings, or their extreme vieivs on political conditions in
South Africa. Itis, for esample, interesting to compare the extracts from
Savc thoscbvho hold or have held offincSouth Africa for some length of time.
Vide. ex.,riara42. SU~M.
2 vide chp. YII. 29-31,33-35>itzfra.
IV,p. 287.
~bii, pp:287-288.
Ibid., p288.
[&id.pp. 268-289.
' Ibid.p,p.597-598.
Vide para.15. supra.
Indeed, had Applicants aished, they might easihave culled much more un-
bridled criticisrn of government policies from the editorial pages of cSoutbn
African newspapers.
l0IV,p. 277.35s SOUTH WEST AFRICA
the writings of Uys and Van Kensburg with the following quotation
from a leading article in The Star, also one of AppIicants' "authorities":
"Tfie success of Transkei self-rule has now become as important to
Africans everywhere as it is to the Governnient . . .
M'tiat matters now is that both [tlie Government and the Bantii]
want it to work, and sa, now, docs n large part of the White popula-
tion whicii doeç not share the Nationnlist belief in separate develop-
ment as a final solution . . .
Self-government for overwlielriiirigly Alrican areas is thus seen to
he a ivorth-while objective for its own sake. Economic development
iseven more so 2."
jj.Although the pro-Government press is predominantly in the Afri-
kaaiis language, the policy of separate delrelopment haç often been
defended also by English-speaking!ourn Aarningtshe latter, reference
n-iay he made to A. \Y. Steward, ivho wrote recently:
"Ive who support apartheid have searched our hearts and we
. firmly liclieve that separate national cleveloliment istlie only solution
to oui problem-that it is tlie only policy that will avoid disaster
and safeguard for both blnck and white tlieir political riglits. And
now may 1just quote a few words [rom General Smuts. Theçe are
tlieworcls: 'It is useless to try to govern black andwhite in the same
systcm' -'."
j6. Another English-speaking commentritor is H. Maclear Bate. who,
in a book erititled Sozrth Africa zclilhozilIJrejudice,wrote, irtter alia, as
foliows:
"To sum up apartheid: the main points are that it is not a new
policy but traditional and finsthe backing of the overwhelrniiig
majority of South Africans. The South Africans, because the ratio
between black and white is something likc four to one (aggravated
by four liundred thousand Indians and one million coloured people),
helieve tliat intermingled living would inevitably leacl to tlieir
siihnicrsinn, which they are iiaturnllv not prcpared to riccept. 'L'liey
are cqiially aware that a policy of oppressi>n is as immoral as it is
impossible. They are adamnnt that a ~~olicyof integration or
assimilation is unthinkable ancl repulsive to black and white ...
Having had three centuries of the closest association with tlie i3antu
tlie South Africans assert that tliey are better able to understand
their own problems than ariy other race and that the only equitable
solution to the racial problem iiiSouth Africa is apartheid which
ensures to both black and white the rn?ans of continucd existence
with increasing procperity and in an ntmosphere of goodwill '."
j7.The vie1i.s of Afrikaans-speaking journalists have unfortunately
only seldorn been expressed in the English language. One such instance is
the article by W. van Heerden, to which reference haç been made 5.In
this article the author commences by stating the following fundamental
consider Rt'ion:
IV, pp.287-288.
,2Th8 Sta>,31 Juty 1964. '
Steward, A.,The ChallengeofChange (1962) p. 48.
* Batc. H. hlaclear. South AfriwithoutPrejudicc(1956).pp.122-123.
11,p. qG9. REJOISDER OF SOUTH AFRICA 359
"The basic viewpoiiit underlying the concept of separate White
and non-White States in South Africa is the belief that, whatever
theories m:ly be held to the contrary, it will nevcr in practice be
possible for Europeans and Africans to govern a common homeland
together to the satisfaction of both. Either the one or the other
\vil1 always consider himself at the wrong end of the stick, and
racial injustice, whether imaginary or real, has right through history
proved to be the most instant agent to set hiiman cmotions aflame
as well as ttie most powerful force to keep racial consciousness
alive '."
After considering the background of, and justification for, separate
development, he expresses the following optimistic vielv:
"There can be little doubtthat, shwld the Black and White races
of this country succeed in sharing a subcontinent on the lines
indicated by the Transkeian agreement,Southern Africa can develop
into one of the great commonwealths of the world. ilrith the 15liite
man's contribution of know-how, of organizing ability and enter-
prise and of human values, and with the virility, yauthful ambition
and manpowcr that the Rlack man can add, there is hardly a limit
to the yossibilities ahead. With woi-ldconfidence nssured and m1t.h
natural resources practically limitless, we have a future to share
~vhich only Our own denset~ess can deprive us of ?-."
$3.As a random example of pro-government editorial writing, reference
may be had to the following translation from a leading article in Die
Brirger :
"The Government's policy of Bantu hornelands is finding in-
creasing acceptance, also outside the ranks of the National Party,
as at least a contribution towards a solution of the South African
racial yrobleni. This acceptance is found in foreign countries. Jt is
found in South Africa among large nurnbers of Bantu bath within
and outside the Rantu homelands. It is found in a newspaper Iike
the Johannesburg "Star", whose attitiide is not condemned by its
readers. It is also encountered in intellectual circles which could
never yet have been accused of supporting the Government.
Briefly, 3 new outlook on the Uantu homelands policy and conse-
quently a new outlook on the nature of the South African problem
has been a striking feature of the Soiith African political pattern
during recent years 3."(Translation.)
59. Further examples from the writings ol South African journalists
and authors, both Afrikaans- and Eiiglish-speaking, who have expressed
support for the yolicy of separate development, or certain aspects thereof,
could be given ad irtfinitum.However, the information and quotations
set out above should suffice to establish beyand doubt that Applicants'
claim of providing a "fairly çelected cross-section of evaluations of
apartheid" by South Afncan authors and journalists, is entirely un-
founded.
1 van Heerden, W., "Why Bantu States?", Optima. Vol. 12,No. 2 (June 19621,
P. 59-
2 Ibid., pp. 64-65.
3 Die Burgcr,20 Oct. 1964.360 SOUTH \C'ESTAFRIC:I
F. South African Bantu
60. Itwill be convenient at the outset to give a short exposition of the
various political trends amongst the South African Bantu. To a certain
extent these trends correspond witli political movements amorigst the
Europeans. Tiius, for exarnple, bot11 the Progressive Party and the
Liberal Party are multi-racial, although the extent of their support
among the Bantu population is probably not large.
61.In addition there exist certain ail-Bantu organizations. The first is
the Africari National Congress (A.N.C.) which was established in 19x2
with the object of promoting thc advancement of the Brintu people
politically, econornically, socially, educationally and inclustrially. In
recent ycars this organization has become more militant and has increas-
ingly been subject to Cornmunist influence. In 1960 it was declared aii
unlawful organization. Ex-chief Albert Luthuli was at that stage its
leader and Nelson Mandela its deputy leader. After its banning, the
A.N.C. established a military section called the Umko~zto we Ziswe
(Spear of the Nation) the leaders of which (including the said Mandela)
were subsequently charged with and convicted ofvarious offenceçarising
from a plan to fornent rebellio~iin Soutti Africa. In his judgmenf at the
trial of these perçons 5, hIr. Justice de Wet (Judge-President of the
Transvaal Provincial Division of the Supreme Court} described the
creation of Umkonto we Ziswe as follows:
"According to the evidence of No. 4 Accused [Govan Mbeki],
kvhichin this respect appears to me to be true, it was decided at the
meeting of the Executive or Centrai Cornmittee of the A.N.C. in June
of 1961 to 'allow'itsmembers to forrna body to engineer and direct
acts of sabotage against targets described as 'symbols of apartheid'
which included buildings bclonging to the Government and to the
IJantu Affairs Department and communications including electric,
teleplione and railway signal installations. It is also clear froni his
evidence, considered in relation to thc statement of No. Ihccused
[Nclson Mandela] and in relation to the documentary evidence, that
the latter was the prime mover in forming the organization. The
latter hnd been deputy leader of the A.N.C. prior to its being banned
in 1960, but had continued his activitieç. It appears to me frorn the
evicience and docilments that the Ieader of the A.N.C., Luthuli, was
informed about the activities of the Unikonto and consulted from
time to time but kept in the background 6." (Footnotes omitted.)
Tlie nature of the conspiracy with which the accused were charçed,
wassuinmed up by the learned Jirdge as follows:
"According to the evidence Eshibit 'R71' entitled 'Operation
Mayibuye' (Operation corne back) was lying open on the table in
Room x when the accused were arrested. This document is rilengthy
l Vide para. 7. supra. .
Vide para.9,supra.
Quoted by Applicants at IV. pp. 269-zgo.
4 Quoted by Applicants at IV,p. 7.91.
Often referreta as the Rivonia trial after the Johannesburg suburb in ahich
the conspirators were arrested.
Rivonia Judgment in the Supreme Court of South Africa (TransvaalProvincial
Division), unpublished,.19. REJOINDER OF SOUTH AFRICA 36r
one and contains a detailed plan for the waging ofguerilla warfare
and thereaftcr a full scale rebellion against tlie Government of this
country. Part 1 sets out that it is clear that 'White suprcmacy'
cannot be ovcrthrotvn otlierwise than by a revolution, that the
ingredients of arevolutionary struggle are present. I quoteonly afew
passages froin this part 'The objective military conditions in which
the Ilovement hnds itseli makcs the possibilitp ofa general uprising
leading to direct military struggle an unlikely one. Rather, as in
Cuba, the gcneral uprising must be sparked off by organized and well
prepared guerilla operations during tlie course of which the masses
of the people will be drawn in and armed' . . . Part 4 deals with
interna1 orgniiization and 1 quote only two passages from this part,
'Our target is that on arrivai tlie external force slioulcl find at least
T,OOO men in the four main areas ready to join the guerilla army in
the initiaionslaught. These willbe allocated as follo\irs:Eastern Cape
to the Transkei 2,000; Katal to Zululand 2,000; North-Western
Transvaal 2,000; North-Western Cape 1,000'. 'In order to draw in the
masses of the population the political wing should arouse the people
to participate in the struggles ttiat are designed to create an up
heaval throiighout the country' l."
That Unzkonto 7rieZiswe, or, atany rate, its author, Nelson Mandela,
\vas under Communist domination, appeared clearly during the said trial.
In this regard the learned triaJiiclgestated:
"[The witness 'X']said that when he addressed the Natal Regional
Co~nrnandAccused No. I [Nelson Mandela] said that perçons of the
A.N.C. and Umkonto who visited other African countries shodd be
careful not to admit that they were Cornmunists or sympathised
with the Communists and instanced the case of one Mtchnli who was
cold-shouldered because he said he was a Communist. Accuscd No. I
[JIandela] was at great pains to deny that he was a Communist, had
Communist sympathy or that he liad said this, but it is interesting
to coniprire what he writes in his report on the Pairnecsa Conference
under the Iieading 'Political Cliniate' namely 'Clear that in this area
there are great reservations about Our pollcy and there is a wide-
spread fecling that the A.N.C. is a Communist doniinated organi-
zation'. 1 may add that 1 share this feeling after hearing al1the
evidence in the present case. In addition there is a lengthy exhibit
in thewriting of AccusedNo. I [Mandela] entitled'How to be a good
Comn~uriist'. 1have no doubt tfiat the evidence of the witness 'X' is
correct '."
62. Another Bantu terrorist organization which is of relevance for
present purposes is the Pan-Africanist Congress (P.A.C.). This organi-
zation was established in 1959 aftera splitin the A.N.C. The founders of
the P.A.C. wre reputedly opposed to the A.N.C. policy of CO-operating
with organizations of Indian, Coloured and European persons, as well as
to its Communist affiliations. Despite the protestations of some of its
leaders, it seems clear that thP.A.C. is an extremist and exclusiveBlack
nationalist organization,with strong anti-White and anti-Indian policies.
RivoninJudgment in the Supreme Court ofSouth Afnca (Transvaal Provincial
Division), unpublished, pp. 23-24.
Ibid., pp. 38-39. 362 SOUTH WEST AFRICA
The latter aspect appears eveii from the article from which Applicants'
quotation of Robert Sobukwe, the ex-President of the P.A.C.,is derived.
The author of the said article state:
"Tlie few important gaps in the theory of the Pan-Africanists Iiad
been provided in an earlier addrcss by hlr. Zack hTothopcng, later
to bc clected to the orgmization's national esecutive. He said there
could be no CO-operation at this stage between the Africanists and
Whites until the contradictions between the national groupç had
been resolved by the Africans. The Africanists, he said, wanted a
non-racial democracy in urhich the African majority would rule.
They did not believe in race, onlyin humanitÿ.
And herein perhaps lies the Africanist's greatest responsibility: to
resist the temptation to manipulate language and encourage words
like 'African' to mean al1 things to al1 men. If they are sincere in
their refutation of 'race',then they should encourage Airicans of
Indian, English, Dutch and otlier extractions to jointhem, instead of
vigorously discouraging them as they are doiiig now. Itis disquieting
that there are men in their raiiks like hladzunya, who is on record as
saying 'no White man is sincere'.
The Africanist line implies sornehow first- and second-class
Africans, with skin-colour being a factor in classification. In other
words: 'Al1 who give their allegiance to Africa are Africans, but some
Africans are more African than others' I."
63. The racial exclusiveness of the P.A.C. appears also from a docu-
ment written in 1960 by the said Sobukwe while in gaol and wliich was
discovered by the authorities before it could be smuggled out. Extracts
from the document are cited solely to indicate the unabashed attempts at
stirring up hostiIe feelings against other groups. Regarding the Indians,
he wrote :
"Their present day politics coiisist of (chasing with the hound and
running with thehare).
They will bribe the oppressor for favours and dole hundreds of
pounds to any seemingly powerfirl organisation of the oppressed
people so as to avoid disturbing occurrences that may affect them
adversely.
A coInmon practice among tliem is that of claiming to be of pure
Inclian hlood. Herealso you begin to seethe influence oftheir culture.
Because of the fact that Indian women must atal1 times be either
expectant or having babies, aiid because Tndian women must alwayç
stay indoors, particularly after sunset, the bulls [go]to the market to
satisfytheir sexual needs on the African women. This is one of the
factors that led tthe Durban riots of 1949.
Indians seduce and render prcgnant African women and then
diçappear Ieaving the poor women to face the insult.That is how
they kecp their so-calied purity 2."
' Rodda. P.. "The Africanists Cut LooseAfrica South, Vol. 3, No.4, July-Sep.
1959,PP 25-26,
Sobukwe.R., Unpublished manuscript,1960,p. 3. (Errors not correctecl.) REJOINDBR OF SOUTH AFRIC.4 363
Anclregarding Coloureds :
". .. the 'Colottreds' in particular adopt a hostile attitude towards
Africans. Thc inajority of these are in the Cape and they regard
0 themselves as superior to the African. Many of them tend to play
white, and wish to be regarded as 'Amper Bosses'. [Nearly bosses.]
Their culture of coiirse is that of the Afrikaner-a very backward
whitetribe.
They know rio politics other than Brarzdewyiz. [Brandy.] They will
put up a new organisation whenever they entertain a political
grievance which is more else a request that a additional light be
put up in one of the climly lit streets. They will do anything to be in
the good books of any Goverfliasnt l."
His vjeïvs on Europeans are equally uncomplimentary. Thus he wrote:
"Europeans areruled hy Iear that once they lose their positions
as oppressors, the revcnge of the African people who have for many
years been subjected to ruthless tortures of body, mind and soul,
niay be uncontrollable. Thcy will therefore actively try and maintain
the status quo, especially because they benefit from it. Tlie strongest
group in tliis type of Europeans are those who still helieve thnt they
can maintain their position in this country indefinitely if orily their
rnachinery isin orclcr ...
There are a lew of the European minority who realise that it is
later than Verwoerd and Graaf think. They realise that the forces
of African Nationalisni will soon overpower the clay God knoivn as
'liThiteDomination'. To them the solution lies in making allowaiices
to certain Africans so that once these priviiedged Africans exist, the).
\vil1then act as the buffers, if not the shock absorbers. There will
then be a devision in the liberntorjl front. This will then removc
the eyes of the African from the genuinc issues involved to such
frivolous matters. This is the attitude of parties like Progressives
and Liberals 2."
In the same document, Sobukwe also took a passing swipe at the
leader of hiç main opposition group in extremist African politics, ex-
Chief Albert T,iithuli, leader of the A.hT.C.3Luthuli, according to
Sobukwe was one of the Chiefs ". . .who praise the Government for its
abundant offers tothe so-cnlled Bantu people" 4.
In pursuance of its political objectives, the P.A.C. (or, as it is also
known, Poqo) has been responsible for a number of particularly snvage
murders, for the niost part of 13antu who donot support its aims
64. To conclude this brief survey of organized political nlovcments
among the Bantu, reference should be made to the Transkei where the
Transkei National Independence Party under hlr. AIatanzima,the Chief
ILiniçter, advocates a policy of developing the Transkei purely for the
benefit of its Bantu inhabitants, whereas the opposition Deniocratic
Party under the leadership of Chief Victor Poto, professes to be in favour
Snhukwe. op. cid.p. 3.
Ibid., pj.
Vide para. 61,supru.
' Sobukwe. op. cit.p. 6.
Vide R.P. 5r11963, p. (paras. 8Gand 87).364 SOUTH WEST AFHICA
of "rnulti-racialisrn".This is, however, a strange brand of "multi-
racialism", of whick Chief Poto himself recently said:
"We rnust realise that the white people who should corne here are
those who will be willing to be under the government we propose to
set up in the Transkei,a government that will always be in the hands ,
of the blnck man l."
And when confronted with the accusation tliat they would have to
invite al1races to be citizens of the Transkei, the Democratic Party de-
clared through hlr. Rajuili, one of its front benchers, that "nobody said
we are going to invite al1races"2.
65. It is significant that Applicants' "cross-section" of opinions ex-
pressed by "South African 'Natives' ", likeivisc asin the case of their
other "cross-sections", is completely one-sidcd. Tt is not only entirel.
devoted to opponentsof Kespondent'spolicy, but is weighted withextrem-
ist politicians representing a small section of militant revolutionaries,
to the virtual esclusion of reçponsible critics of government policies or
certain aspects thereof, not even to mention the substantial and in-
creasing number of supporters, to a greater or lesser extent, of the policy
of separate deveiopment. The existence of such support appears everl
from statements by perçons who are certainly no protagonists of govern-
nient policy gencrnlly.An example of such a person is Mr. M.T. Moerane,
a Bantu who is cditor of the newspaper World piiblished in Johannesburg.
He writes:
"Everywliere 1meet friends they ask me: '1s the Transkei getting
anywhere?' 1, too, was asking that question a few weeks ago. hIy
answer today is: Yes! The Transkei has nothing to lose from self-
government ;andit stands to gain.
The Transkei has already achieved one thing-a stable govern-
ment with a determined cabinet and a challenging, powerful
opposition.
These are not amateurish clownsmimicking government.
In debate, programme and respansibility, this Government
compares favourably with any parliament, Cape Town and other
African independent states included. 1 have seen many of these in
action.
Man? people have called hirn a stooge but hlatanzima's Govern-
ment has been able to gain important concessions and advances.
Matanzima is taking the Republic Government at their word.
He redises tl.iahiç positj~n of dependency isnot ideal and he is
seton a course to full independence soon.
hlr. B. S. Rajuili, one of Chief Poto's whips in the D.P. [Uemo-
cratic Party], would like Bantustans on the pattern of the Transkei
established quickly.
Not so long ago, many would have thought such a suggestion pre-
posterous.
Many sons of the Transkei have refuçed to have anything to do
with this experiment, on principle. They regard itas a mischievous
diversion from the true cause of African freedom ...
l Dcbates of the Transkei LegisLative Assembly, 2nd Session-1Assembly, 5
May to gJune 1964,p. 13.
Ibid.. p. 33, REJOIXDER OF SOUTH AFRICA 365
While the struggle for ultimate solutions is going on, however,
Bantustans may have some contributions to make.
A Parliament like the Transkei docs, for the first tirne, give
Africans a voice in their affairs and some executive power, some
recognition of citizenship rights.
Suppose al1 the planned Bantustans-in Zuiuland, Northern
Transvaal, Ciskei, etc.-were established, these areas would also
have a voice, and an education and these parliaments could make a
powerid voice with a sizeable population behind it.
Al1that would be necessary for a tmly African voice wouid be to
give urban Africans their version of political freedom.
At this point the Africans could at least express their views
unitedly. They would have some representation, unlike now. Dr.
Verwoerd could bring about his "Commonwealth of Africa" govern-
ment. Therc would be parties with which to negotiate l."
66. In a recent work, Dr. Ben hlarais, Professor of History of Christ-
ianity at the University of Pretoria and a. wcll-known commentator on
South African qiiestions (and, incidentally, ;ils0 a person with strong
reservations on certain aspects of Government policy), wrote as follows:
"There is not the least doubt that the Bantustan angle of apart-
heid or self-developnient has gained corisiderable support from the
African groups themselves and from many foreign quarters . . .
It gave many Afncans the feeling that the ivhites really mcan to
give them freedom and independence. The fact that they will have
their own parliament and that African administrators are trained
have resulted in rigreat measure of CO-operation and enthusiasm.
lt has also greatly strengthened the moral basis of the philosophy of
a~)artheid or separate development. Many Africans have accepted
it as proof of the whiteman's or Govcrnrnent honesty 2."
67. Reference has been made to certain views expressed by TheStar
(a Johannesburg newspaper quoted as an autliority by Respondent),
regarding the desirability of the Bantustan policy 3.An earlier articleby a
Bantu contributor to the same newspaper esemplifies the estent of
support for some vital aspects of Respondent's policies even arnong
people ~vhoprofess to be opposed thereto.
During 19 jg,Alr.alakgona Tsotlhe wrote:
". . . 1can recall no thinking African who would condemn residential
apartheid. It is this particular segment of apartheid that has been
and still in,blessing in disguise.
Prior to the enforcernent of the Croup Areas Act of 1952, many
African fa~nilies in Johannesburg livcd iii the backyards of tlieir
\Vhite landlords. They led an aimless life. And the few who showed
signsof striving for an idealistway of life, soon hadtheir aspirations
woefully bedevilled by the concomitants of the freedom they
enjoyed in the backyards.
In contrast today, the African in his present townships, rvhere he
has been allowed to trade among his people as he pleases without
l TheStar.27 July 1964.
2 Marais, B., ThTwo Faces ofA fràca(1964),p.34.
Ifide para. 5sitpva.366 SOUTH WEST M3RIC.I
any fear of foreign competition, is achieving aii epoch of economic
self-realization.
Not only has he been given the privilege of renting a house
indefinitely in the townships, but is also authorized to build a house
of his dreams in some areas.
Perhaps few. particularly among the \lrhites, realize that places
likethe Dube township are miniature cities where the people have
corne to realize their real selves in practically al1 walks of life-
something to which they could not have attained were they left
indefinitely in the backyards ofthe White landlords in White areas.
That is the advantage residential apartheid has brought. But 1 must
not be taken as favouring apartheid in general-it is simply that
we should face reality as it presents itsel."
68. Among the Bantu supporters of the policy of separate develop-
ment, the most influential at the moment is probably Chief hliriister
hlatanzima himself. Many of his speeches and statements are available,
but it will suffice to refer to a recent addresby Iiim, a report of whicli
reads as follows:
"Since the present Transkei Government had taken over there
had been unprecedented peace in the territory, the Chief Minister,
Chief Knizer Matanzima, said in Umtata. last night, addiiig: 'This
goes to the credit of the policy which has received unwarranted
attacks from people ignorant of the South African set-up.'
He snid thnt the people of the Transkei accepted the policy of
separate developnient and requcsted that it be applied.
'The Republicaii Government never imposed it on us', he said.
'\ire askecl for it because iis the only realistic way of bringing
about equalitg among al1 races in South Africa on the basis of
parallel development' =."
Attention iç invited to other statements by Mr. Matanzima quoted
above '.
69. A~iother prominent Transkeian personality, to irhom rcference
may be made by way of esarnple, is ChieBotha Sigcau. In Igjg he said
in a speech before the Transkei Territorial Authority :
"Ive Iiave accepted as our own the policy of Separate Developme~it
with its Bantu Authorities, Bantu Education and otlier cognatc
administrative measures. It7e have accepted this policy not by
compulsion, but voluntarily because it accords full recognition to
Bantu cultural institutions; to that which is our own aiid whicli we
endear-our customs, Our laws and Our language. We are deeply
impressed with the mnny and important benefits which yoii have
made possible for us, under this policy. It is our wish and cndeavoiir
to live in peace and friendship with Our fathers, the Eui-opeans of
South Africa. The only way to bring about this harmonious settle-
ment hetween the two cultural groups is that of separate dcvelop-
ment.
.........................
We can assure the non-european leaders in Africa and the Bantu
l The Slar. 25 Sov1959.
Ibid.,15Oct. 1964.
Vide Chap. V,paras.65-09,supra. REJOINDER OF SOUTH AFRICA 367
organisations in 'South Africa who attack the policy of separate
development, thst we are not in sq-rnpathy with tlieir actioris.
Separate Uevelopment is also Our policy and consequently thcy
attack us as well l."
And, addressing the same body in 1961 ,e said:
"Now, the question might be asked: 1s it not time that this
Authority maintained a definite policy-the policy of separate
development? By separate developnient is meant that the people
should nianage their own affairs and shall be their own destiny. This
poficy the Bantu people have aspired to during the last decade. 1t is
the policy envisaged by the Government and in rny own submissio?
it is the only policy which can Iead tothe practical solution to race
conflictsZ."
70. Addressing the Zoning Cornmittee appointed in terms of section Go
ofthe Transkei Constitution Act, 1963, Dr. Gwele, a medical practitioner,
said :
"First oi al1 I would like to express the view that we arc very
thankful to Providence and the liepiihlican Governnient for this
very fine idea of parallel development, because at least it gives us
something to look forward to as Non-Europeans. For a vcry long
tiine.N+C have espenenced lipservice promises from the vnrious
Governments we have had but todny, under this idea of self-
developrnent at least we Non-Eluropeans can look forwrird to
sornethjng tangible, and what is most encouraging to us is tliat, ils
far as we have obçerved in manyparts of the Kepublic. thc promises
that have bee~imade by the Govcrnment have gone forward in many
avenues of life . .3"
71. In Ilis customary Christmas message to the Zulu people in De-
cember 19.59, Paramount Chief Cyprian Bhekuzulu, wrote, ilzlev dia:
"Lulii, we have been living in a stnte of uncertainty for many
generations and during that period we did not know where we stood
in common society. \Ire were roarning aroilnd aimlessly because no
definite way had been shown to us which we could walk along.
To-day however, the position haç chaiiged, a road has been opened
to us, our own road, a road that everybody can see.
'Through this palicy we as a Xation can regain Our former self-
respect, prjde in our National traits, love for our folk-lore and
obedience to authority. There is a lot that is good and noble in our
old traditions. Letus retain the good of thepast and build Ourfuture
on it. Every Nation in the world has its traditions and even bnttles
have been fought to safegunrtl those traditions. Why should our
traditions tlienbe looked upon disrespectfuly?
........................
Zulu, iii terms of the present policy in this country as whole, the
Transkeian Territoriat Authority, ProceediandsReporls of Select Coniinitlees
at the Sessioa/ 1959:Ar~nuaI Reports and Accounts for 1953 and Estimates of
Revenue and Expenditure for 1959-1960 (1959)p.p. 30-31.
at theSession of 1961: Annual ReportsandoAçcounts for 1960 and Estimates ofcs
Revenue and Expenditure for 1961-1gU2(igG~),p. 103.
Departmental information.36s SOUTH iirEST AFRIC.4
road before us içclear. Everybody can see it and everybody should
be able to understand it. Development on separate but paraIlel lines
makes for orderly societies ... l"
72. On 8 necember 1964 the Tswana Territorial Authority unani-
mously ndopted the following resolutions:
"This Authority, representing approximately one million Tswana
people in tlie Republic of South Africa, wishes to place on record-
(a) its unswerving loyalty to the Government of the Kepublic of
South hfrica,
(b) its full support for the policy of separate development, and
(c) undertakes to carry out to the full ts share of the whole
programme of separate development 2."
73. That Respondent's policics enjoy increasing support also among
the urban Rantu, appears, itzter alia,from the following passage by
"hfhloli". a Bantu columnist of TheStar 3.
"'ïhere has, in the Iast few months, been a noticeable swing aniong
African urban leaders in favour of the urban Bantu council systern
whiçh, it is felt, would not only give Africans more local self-govern-
ment b.ut would also enable them to improve the running of their
townsliips.
Thinking African businessmen in Dobsoiiville, including ex-board
member and ex-school-teacher, hIr. A. L. hlolefe, have condemned
the present advisory board system as archaic. 'I'heywould like to see
the system of the Urban Bantu Couiicils put into practice in this
township as soon as possible.
According to &Ir.Molele: 'The Urban Bantu Council system is the
only one togive us a break-through to a complete say in our affairs.'
hIr. Molefe is strongly of opinion that those African townships
which have accepted the U.R.C. system will in the long run beriefit
immensely. For more than IO years he served on the local advisory
board and it was largely tIirough his great influence that Dobson-
ville became what it is today.
'The ndvisory boards are useless and do not conform with the
iiiodcrn way of thinking and trends. ?O-day the emphaçis is on
separate development '4"
74. The Bantu ildvisory Board of Brakpan passed a resolution in
1963 expressing the "warrn appreciation" of the Bantu cotnmunity
because the Town Council of Brakpan "implements the policy of the
Governrnent, for its active contribution towards the achievement of
Government policy and for the sympatlietic consideration given to re-
quests" 5.(Traiislation.)
75. In a recent article, hlr.D. E. Mabudafahasi, Lecturer in Sociology
in the University CoDegeof the North at Turfloop, wrote:
1Bandu. Xo. 12 (Dec. r959),pp. 12-13.
2Departmental information.
Which. as already noted, ia newspaper relied upon as an authoritby Appli-
cants. vidapara. 54.supra.
The Slar, 3 Nov.1964. Vide also25 Nov. 1959, articlin the same newspaper
referred to in para67,supra.
Die Trarrsualerri May 1963. REJOIBDER OP SOUTH AFRICA 369
"Since its implernentation, the policy of Separate Development
has already proved its worth against humanitarian argumerits from
armchair speculation. 1cannot imagine what would happen in South
Africain the absence ol this policyl."
76. As a final example, liespondent will refer to an article by Mr.
Obed M. Makapan, a prominent Bantu leader and principal of a Bantu
sciioolin Johannesburg :
"Apartheid is a nntural line of demarcation betwecn pcoplc of a
differelit outlook and diHerent standards of civilization, and there-
fore 1welcomed the Government's policy of Separate Developrnent.
1 feel that this policy should be givcna fair chance by those people
who do not know what has already been done.
Separate development is a unique chance for the 13antu of South
Africa given them by the Government. 1Say unique, hecause it is
necessary to study this idea meticulouslj~ to discover al1 its tme
vaiues '."
And, after discuçsing theprogress that has been made under tlie policy
of separate devclopment in the fields of education, employrnerit in the
civil service, health, and Bantu authorities, the writer concludecl:
"So, in al1spheres of life the benevolence of apartheid can he felt,
the progress can be perccived, the success of individiials can be seen
because the foundations of development have been well and truly
laid forthe even higher separate advancement of al1the progressing
Bantu National units 3."
77. From the aforegoing it is apparent that among tlie Rantu, as
among al1other peoples of South Africa, the challenge of the country's
problems has brought forth a variety of views, some opposing the
Government, some çupporting it, aiid some cutting across its policies.
It is equally apparent that there is no unanimitg amongst opponents of
the Government as to what would constitute a preferable policy to the
one implemented at present. 1t follows that, also with regard the Ban tu,
Applicants' suggestion that the policy of separate development has met
with universalcondemnation, must be held ta beentirely unfoundcd.
G. South African Coloureds
78. The first major political organization among Colouredswas founded
in 1902, and was called the African Political (later People's) Organization
(A.P.O.). Its aim was to champion the dghts of the Coloured people in
al1 parts of South Africa. In later years the A.P.O. developed into a
supporter ofthe so-called non-European Unity hlovement which sought
to secure full citizenship rights for Bantu, Coloureds and Indians on an
integrated basis. This policy was opposed by the Coloured People's
National Union (C.P.N.U.), an organization established in 1944 for the
purpose of improving the economic, social, educational and political
conditions of the Coloured people by means of closer understanding with
Dagbreek enSondagnttus20 Sep. 196.4.
Spottiswoode,H. (Ed.) (Nov.rg6o), p121,e It", South Afvica, ThRoud Aheud,
Ibid.p. 122.370 SOUTH WEST AFRlCA
the Government l.The C.P.N.U. did not believe that the best interestof
either race would be served by common political action between Hantu
and Coloured '.
The president of the C.P.N.U., Mr. George J. Golding (quoted by
Applicnrits under the heading "South Atricsn 'Coloureds' ") Z, expressed
this attitude as follows:
"As a Coloured group we Say quite clefiniteiy that we are prepared
to organize the immense potential field among our people and to
fight Our own battles ... Untess the Coloured people are prepared
to share every aspect of their lives in an unreserved and honest
manner with the Katives of this country, then they have absolutely
no grounds for making useof the numerical superiority of the Satives
for purposes of generating a social revolutionl."
The C.P.N.U.'s attitude to the A.IJ.O.waç expressed by Mr. Golding
in these words :
"If the A.P.O. had fulfilled its true function, there would have
been no need for the C.Y.N.U.; but since the A.P.O. has expressed
itself against collaboration witli the Government, and by thsowing
its doors open to perçons 0th than Coloured people, it now becomes
a conglomeration of cosmopolitan interests, with the result that it
no longer speaks specificallon behalf of the Coloured people l."
79. Although dissatisfied with the extent of political rights granted to
the Coloured people, it is clear that Rlr.Golding supports many aspects
of Government policy. Recently he çaid :
"Fourteen years have elapsed since 1 wrote a Foreword to the
pamphlet 'The Coloured Blan Speaks' 3.1am convinccd today, as1
was then wlien 1spoke on behalf of my Col~ured people, that therc
waç no justification-moral or legal-in depriving the CoIoured
people of South Africa of political riglits which they enjoycd for over
a cent~iry and in having the Coloured voters removed from the
Common Voters Roll. . .Having said tliat, however, 1 must confcss,
in nt1 fairriess, tlisince thosc für off days in 1950 the lot of thc
Coloured man in South Africa 11:~simproved beyond recognition.
Leaving aside the political aspects to which1 have referred 1 must
in al1 fairness çtate that since rgjo there has been a progressive
betterment in every aspect of the living conditions of the Coloured
people of thiscountry . . .As a result of progressive steps taken under
the present Government, the doors of the public service, practically
in al1 its branches, have been opened wide to our Coloured people.
In niany Government Departmerits we now have top ranking
positions held by members of the Coloured group . . .
The Government has created a new Department of Coloured
Affairs under the control of a Miiiister who occupies full Cabinet
ranking. This Department is responsible for reorientating the
attitudes of al1Governmentnl Depnrtrnents towarcls~ the Colou~d
people. This Department is responsible for protectingand dcveloping
the functions and livelihood of the Coloured group. Economically
1 Rellmann, E.(Ed.), Handbook on Race Helatio.nsiSouth Africa (19.19pp.
526-527.
IV,p. 292.
Quoted by Appficantsat IV,p.292. REJOISDER OF SOUTH AFRICA 37I
there has been a great upliftrncnt of the Coloured people. The
Government formed the Coloured Development Corporation and by
means of large funds placed at the disposal of this Corporation,
' Coloured people have been helped to take part in the economic
development of South Africa. For the first time in the history of
our country Coloured business men and Coloured controlled corn-
panies have bcen given financial help to establish and develop new
commercial enterprises in South Africa. In previous years these
facilities were thepreserveof thWhite only.Today this monopoly no
longer exists. Today members of the Coloured cominunity are
enabled to open up their own liquor stores, their own cinemas, their
own departmental stores in competition with their fcllow White
citizens. There is no longer any restriction placed upon OurColoured
people. No business activity wliatsoever, either in the field of
commerce or industry or farming is now closed to the Coloured man.
Governmental help in the form ofloans and subsidies arc available
to him to enable him totakc hiç place in whatwashithertoregardedas
aEuropean preserve. Quite recently the first bank forColoured persons
was established in this country and this particular field offerun-
limited scope for development and upliftment of our people.
In the sphcre of education, the Government has beerigenerous in
building magnificent schools and making rnucti larger fncilities
available toour Coloureclçhildren.Rfany additional high çcfioolshave
becn established in most modern and well equipped buildings and Our
Coloured people have shown tlicir appreciation of this by the manner
in which they Iiave responded to filling those schoolç. Our education
system, as far as the Coloured people is concerned, iscomparable
with any educational systcm in any part of the country ... The
Government has estabLished a University College of the \Vestern
Cape which has made it possible for hundreds of Coloured youths to
obtain a full University education which hitherto was denied to
them. Previously a very limited number of Coloured students wcre
accepted at Our European Universities. Today Coloured people
can daim that every Coloured boy or girl ~vhois desirous of pursuing
a University education cnn be accommodated in this Coloured
University. Whilst the Coloured people originally opposed the
arrangement of this separate University, by and large tlic Coloured
people today appreciatc the many advantages'whicl-i tl-iisUniversity
liascreated for thcm. 1 Iiave only rnentioned a few exarnples of the
improvements wliich 1uve been created for the Coloured people
during the past ten years. In aI1fairness 1 must confess that thcre
has been a sincereendenvour on thepart of the Government to help
the Coloured cornmunity wherever possible. 1 thi~ikthat the Govcrn-
ment has now corne to realise the fact thatthe Coloured people are
partners in one South African nationality, that we take second
place to no other section of the South African population in Our
patriotism and loyalty to Our country. It is for this reason that the
Government haç, with great rapidity, improved the educational,
social and economic aspects of our lives.
1 am quite certain that, withoiit the sympathetic help of our
Government,it would have taken OurColoured folk many more long
years of toi1 and swcrit and frustration to have acl~ievcd the ad-
vancement which I-iasbeen made in these last few yenrs. It ismy372 SOUTH WEST AFRICA
earnest desire that the spirit of good wiHwhich now esists between
the Coloured people and the Government and generally with the
White people of South Africa should continue. Coloured Leadersfeel
that if this advancement in Our educational, social and economic
spheres can be rnaintained and improved, the time must come when
the Government of the day will have a new approach to our political
rights. For theprescnt we feel that we must strive in a spirit of good
willand loyalty to Our country to develop the alreadp magnificent
advancement which has been created for us under the present regiine
in South Africa l."
80. It is significant how many other Coloured leaders Iiave, like hlr.
Golding, beconie increasingly aware of the benefits of the policy of
separate development, or at least certain aspects thereof. Thus, for exnm-
ple, in October 1964 the following report of an address to the Minister of
Coloured Affairs by hlr. M.U. Arendse (quoted by Applicants under the
heading "South African 'Coloureds' ") 2,appeared in a riewsyayer for
Coloureds :
"Mr. M.D. Arendsc said that he was gratcful for the opportunity
of taking part in thanking [the Minister]. Where he had expressed
criticism in the past, the Minister shouldaccept iinthe spirit inwhich
it was said.He had not been happy about the transfer of education,
but now he was happy about the spirit in whicb it occurred. He could
also perceivc the tremendous improvement in technical education,
hlr. Arendse said.
He had opposed localcornmittees, but now he had come to the
conclusion that it coutd serve a useful purpose to briiig democratic
government tothe majority of the people. The fact that he served on
the Council [for Coloured -4ffairsJ proved his confidence and liope
that the Government was genuine in 'the socio-economic improve-
ment which we are seeing'. He felt that the Coloured folk should take
up its positionto render South Africa strong against the onslaught of
Black Africa, hlr. Arendse said 3."(Translation.)
Reference may also be made to the foiiowing report of a speech by
Mr. Tom Swartz, Chairman of the Council for Coloured Affairs:
"Fruitful CO-operationbetween the Government and the CoIoured
people was the resrilt of the policy of separate development, Mr. Tom
Su7artz, Chairman. said in his opening address at the twentieth
session ofthe CouncilforColouredAffairs in CapeTown. He mentioned
the services of councillors and members of other bodies, and said,
'Five years ago this stateof affairs was almost impossible-however,
a rernarkable change has occurred, and many leaders who we.
actively ngziinst are now actively CO-operating,a fact which vindi-
cates the stand which members of the Council took when they
accepted office on the Council in the midst of malicious persona1
vilification3."
Golding. G. J., F'residentof the ColouredPeople's Kational :Unpublished
Statement dated 12 Xov. 1964.
IV. p.292.
Die Banier (1sted.), Oct. ~gGp. S. REJOISDER OF SOUTH AFRICA 373
Another Coloured leader, $Ir. C.1. R. Fortein, snid:
"The present political climate in South Africa is in favour of the
advance of the Coloured people with their white compatriotstowards
a common destiny along parallel paths. This is completely logical
and moral for the one cannot interfere in or injure the interests,
wishes and aspirations of the other. This has been dernonstrated by
goodwill,sympatliy andgenerous allocation byParliament ofresources
for problems of administrative character in our fornard develop-
ment and should serve as a practical indication of a compietely new
healthy and promisjng Afrikaner-Coloured rcapproachmcnt in the
history of South Africa l."
&Ir.Booker Lakey (Secretary of Die Klettriing VolRsbond of South Africa
and a prominent Coloured leader), wrote in a letter to the Mayor and
Council ofAberdeen, Scotland, in connection with thatCouncil'sdecision
to boycott goods from South Africa:
"The decision portrays a completc lack of kiiowledge ofthe vitality
separate development infuses into the lives of Coioured folks which
cnabIes them to become masters of thcir own destinp i~itheir fast-
developing separate residential areas =."
Sr. The "spirit of good will" betwcen the Coloured people and the
Government referred to by Mr. Golding has manifested itself in the
creation of political rnovements supporting the policy of the National
Party, particularly for the purpose of contesting elections for the newly
created CoIoured Persons' Representativc Couiicil3. In this regard, a
recent report stated:
"'I'he ncwly-formed Federal Coloured Peoples' Party issued a
statement in Cape Town recently pledging to seek independence for
the Coloureds, and to encourage them to make use of the opportu-
niticsoffercd by the South Africar Giovernment'ç policy of separate
development.
The new party will enjoy the support of, among others, two
members of the esisting Council for Coloured Affairs-%Ir. N. P.
Arends of Bellviile, Cape Province, and >Ir. R. H. Fischat of Port
Elizabeth.
l'he establishment of the FederaI Coloured Peoples' Party had
bee~iforeshadowed by the chairman of the Council, Nr.T. R. Swartz.
The gcantiig of the franchise taal1adult Caloureds had thrustthem
intoa new situation, Mr. Swartz said at a meeting of theCouncil. One
of the first reactions to the franchise grrint was the establishment
of political parties exclusively for Coloureds.
It is rcportedfrom Port Elizabeth tliat Mr. Fischat intends tohave
Coloureds throughout the Country informed of the new party and
to encourage them to register as voters for the election of the
CoIoured Perçons' Representative Council.
hlr.Fischat said that he was pleased to find that Coloured leaders
who had formerly strongly opposed tlie policy of separate dcvelop-
ment and who had even intirnidated him onaccount of hisaccept-
Copyfiled with documentation..
Established in termof Act qgofrgG4.374 SOUTH WEST AFRlC.4
ance of the policy, were now enthusiastic for the establishment of
an ali-Colourcd political party'."
And still more recently a new party mas established for Coloured perçons
in the Transvaal, the policy of which, according to ib executive, em-
braced the following:
"As the Government's policy of separate development is being
unfolded, it becornes clear that the Coloured population is receiving
ever increasing rights to manage its own affairç and to develop as a
separate population group which must seek its own salvation ...
A policy of multi-racialism and liberalism must eventually destroy
tlie Coloured population.
We reject completely any Liberalist or integration policy of any
politicalpartÿ orgroup in the Republic.
iIre accept the policy of separate development as tlie onlp principle
upon which each population group in the country can develop fully
and upon which a future can be built by the Coloured people for the
Coloured people *."[Translation.)
Similarly, itwas reported:
"A neur political party for Colourecl peopic, called the Repub-
likeinsc Tzuty, liasbcen formed at Beaufort West. Claiming a mem-
bersliipof itcarly 300, thparty 'wliolehearteclly'siipports the policies
of the Government 3."
52. It isapparent from the foregoing that arnong the Coloured popu-
lation, as among al! other groups or sectioiis of ttie population, there
exist wide difierences of opinion regarding tlie policy of separate develop-
ment or of particular aspects thereof, and that, coiitrriry tothe impression
sought to be created by Applicants, Kespondent's policies comrnand a
substantial nntl increasingvolume of support.
H. SouthAfrican Asiatics
83. Amoiigçt Asiatics in South Africa, as among al1 the other groups
dealt witli herein, the matter of race relatioris is a burniiig question on
which opinions differ u~idely. It is significant thnt Applicants, although
atternpting to crente the impression of ~roviding a representative
selection of persons, have once again Iimited their "cross-scction" to the
most ertreme wing of Government opponents. An interesting example
of this teclinique is found in the case of Nana Sit4,who is described as a
"trader in Pretoria since 1913". Since Çita was borii (in India) only in
1898 .4ppIicaiitsf date iç apparently wrong. I\loreover, Applicants
refrain fromsayiiig that Sita haç been an active ~olitician fomany years,
having been Chnirrnan of the Transvaal Indian Congress and a leading
participant in thc passive resistance campaigns of tlie 1950s.
84. Respoiident submits that the extreme opponents of Kespondents'
policies of thetype quoted by Applicants represent a small minority of
Asiatics, and that, apart from more moderate critics, this g~~up also
Die T~ansualerBiOct.ig64.. 1964.
The Cape Times,29 Apr.1964.
* Quoted at IV,p. 596.
Departrnentatinformation. REJOlNDER OF SOUTH AFRICA 375
contains an ever increasing number of supporters of the Government
policy. Thus Afr. A. S. Kajee, a prominent Indian leader, said recently:
"For the first time in the history of theIndians in South Africa we
have heen accepted by the present Nationalist Government as
South Africans, and also the Government has for the first time
appointed a special Minister for Indian Aflairs to deal with Indian
matters and problems, and these could only be successfully achieved
by CO-operativeconsultations. Our duty now is to bring to the notice
of Our Minister the Hon. Mr. Maree our legitimate grievances, who 1
am satisfied is sincere and will do everything within his power to
give us the desired reliel."
Even more recently another prominent Indian leader wasquoted in the
Press as saying :
"We support Dr. H. F. Verwoerd's policy of separate develop-
ment . ..There are many Indians in Natal who support the Gouern-
ment *." (Translation.)
Mr. Sayed Ahmed Rassool, President of the Muslirn Religious League of
Durban, was reported to have said that ". . . he supported Apartheid
because his league believed that the various races should retain their
identity" 3.
Further refutation ofthe picture sought to be sketched by the persons
quoted by Applicants, can be found in the words of hlr. T. K. 31.Baiasu-
bramaniam, famous international lecturer and citizen of India, ïvho said
after a visito South Africa that-
"[tlhe IVliites seem to be sociable, accornrnodating and sincereiy
interested not only in the general welfare of.the country, but also in
promoting the intcrests of Indians and other fellow citizens in this
country 4".
1. Conclusion
85. From the above survey it is ahundantly clear that Applicantç have
failed in their attempt at establishing that there exists among South
Africans a gcneral consensus of opinion either to the effect that separate
development is an immoral or impracticable policy, or to the effect that
some other policy is preferable thereto. This in itself sufficesto neutralize
any effect which Applicants' alleged "cross-section of cvaluations" might
othenvise have had. Once it is clear that honest and informed opinions
differas to the merits of a particular policy, then it is cIear that the mere
fact that it is condemned by some perçons, could not establish that it is
"beyond question" a bad policy or that another policy is beyond question
a preferable one 5.This would a fortioribe the case in circumstances like
the present, where the policy which Applicants attempt to discredit
enjoys very rnuch greater support, at least among educated and pohti-
cally conscious persons, than the policy which Applicants seek to impose
The Graphie,21 Aug. 1964.
Die Tvatisvalev12NOV. 1964.
Daily News, I IJan. 1964.
+ Indian South Africansp. 38.
Vide sec.C,paras. 26 and 38-39.376 SOUTH WEST AFRICA
on South West Africa (i.e., universal franchise in the iramen-ork of a single
territorial unit) l.
86. The opinions of persons quoted by Applicants were relied upon
as being "judgments of qualified persons" *. It is clear therefore that
AppIicants do not intend these quotations to constitute separate com-
plaints to be dealt with on their merits as something additional to the
charges formulated in the rest of their pleadings. It will suffice therefore
to refer briefly to some of the main to ics referred to in these quotations,
and to indicate where, if relevant, Lespondent deals with thern. The
main topics are :
(a) Hornelands, and, in particular, the Transkei 3.
Thiç topic has been dealt with in the Counter-hlemona14 and
furtlier in this Kejoinder
(6) Job reservation 6.
The laws on job reservation regarding which Applicants quote
certain cornments, are not applicable to South \\.'est Africa and the
"judgments" are therefore not relevant at al1 to these proceedings.
Reference may be had, however, to a brief discussion in the section
of this lxejoinder dealing with economic aspects of the topic in
relatioii to an allied although very dissimilar situation in South
West Africn.
(cj Pass laws and influx control
These matters, in so far as they relate to South West Africa,
have been dealt with 9.
(d) hrigratory labour 1°.
This subject is dealt with below 11.
(e) Separate Universities 12.
This matter is dealt with elsewhere 13.
(1,) Abolition of Natives' Representatives in Parliament 14.
Respondent cannot see what relevance this isçue has either to the
present case, or to South TVest Africa at all. Wowever, the basic
IV,p. 441.
Ibid., p. 277.
3 Keferred to, inlev alios, by Prof. Brookes (IV. p. 281), Dr. Keet (p. 284), the
Hon. Mr. Schreincr (pp. 285-286), hlr. Donald Motteno (p. 286), Stanley Uys (pp.
287-288). P. van Rensburg (p. 288). ex-Chief Luthuli (yp. 289-z~o), Archbishop
Hurley (p. 596). Mrs. Suzman (p. 596).
+ II. pp. 457-488.
3 Vide Chap. V, supra.
6 Referred to in the Reply by Prof. FrankeI (IV,p. 282). Dr. du Plessis (p. 284),
the Cottesloe Consultation (p. 284), the Hon. hLr. Schreiner (p. 285). AIr. Arendse
(p. 292) and Jlr. joshi (p. 292).
7 Vi& sec. H, Chap. IV,paras. 8-24, i?rfra.
8 Rcply. referrcd toby Dr. du Plessis (IV, p. 284), Colin Legum (pp. 288-z8g), ex-
Chief Luthuli (pp. zSg-290).Nrs. Suzman (pp. 596-597).
9 Counter-Rlemorial,Book VI.
10 Referred to,interaZios, by Cottesloe Consultation (p. 2841,Colin Legurn (pp.
288-z8g), Rev. Hiiddleston (pp. 595-596)P.hyllis Ntantala (p. 598)
11 Vide sec. H, Chap. II, paras. 15-42, infra.
12 Referred to, inter alios, by the Hon. Mr. Centlivres (p.2QU), Prof. Matthews
{p. 290) Academicians, etc. (pp.593-594).
13 III, pp. 477-489 andvide sec. G, infva.
1' Heferred to by theHon. hlr. Fagan (p. IV, p. 285) and Mr. Basson(p. 287). REJOlSDER OF SOUTH AERICA 377
principles uiiderlping thiç measure are discussed in the Counter-
Mernorial l and herein 2.
(g) Group Areas Act 3.
This Act does not ayply to South \Vest Africa and the comment
in the Reply is accordingly of no relevance. Respondent will ac-
cordingly not deal with such comment Save to Say that it isbiased
and one-sided, and in many instances completely inaccurate.
The Act was designed to benefit al1 the various groups in South
Africa, and has indeed made a valuable contribution to the peaceful
deïreiopment of the whole population.
The social, histoncal and legal background to separate residential
areas is different in the Territory from that prevailing in the Re-
public. In so far as the factors militating in favour or such sepa-
ration show some correspondence, reference may be made to the
treatnlent thereof in the Counter-Mernorial 4.
-
l 11,pp. 457-488.
2 Vide Chaps. IV and V, supra.
Referred to, interalios, by hfi. Paton (Ip. 287),Dr. van der Ross (p.292).
Yusuf Cachalia (p. 293)and Nana Sita (pp.598-5991.
+ III, pp. 167-193. CHAPTER VI1
VIEWS OF FOREIGNGOVERNMENT SND COMMENTATORS
I.The second class of "relevant evidence" adduced by Applicants is
described by them as "[o]fIicial views of Governments in al1parts of the
world, expressed, interdia, through the United Nations ... as well as
tlirough findings and resohtions of the United Nations itselfml.
Applicants seem somewhat uncertain as to the exact basis of relevance
of thesc "officiaiviews". At the outset of their discussion they Say, with
reference to Respondent's submission that United Nations reports and
resolutions are of no relevance to this Court's judicial function 2,that-
"Respondent thvs denies the relevance of findings and recommen-
dations of the 'organized body' in and through which Applicants
ha1.e sought to settle their dispute with Respondent through pro-
cesses of 'diplomacy by conference or parliamental diplomacy'.
Such a contention would appear to bc unworthy of elaborate refuta-
tion "."(Footnotes omitted.)
Once again, Applicants have succeeded in being completely obscure.
Wlietlier or not United Nations reports and resolutions could serve to
establish the existence of a dispute between the Parties, and the further
fact that any such dispute could not be settled by negotiation, were mat-
ters which were dealt wvithat the Preliminary Objections stage. Tliese
issues were decidcd in Applicants' favour, and are of no further relevance
at the present stage of the proceedings. Consequently it is assumed that
Applicants are not, in the above-quoted passage, still fighting thcse
defurict issues.It follows that they must be suggesting that the repprts
and resolutions have somc relevance to the merits of the present dispute.
However, the only ground advanced by them in the above passage for
such suggestion is that the said reports and resolutions emanated from
the body in and through which the parties allegecily sought to settte
their dispute. Respondent does not appreciatc the cogencjr of thisconsi-
deration, and can consequently do no more than to refer to its previous
discussion of the alleged significance oi such reports and resolutions 2.
2. Eut Applicants go further. They say that Rcspondent's dismissal
of the relevance of findings and recommendations of the United Nations
".. . may be regarded as a redttctiad ~bsurdzrm of its total rejection of
international supervision and accountability" 4.
Once again the logic of this proposition is not apparent. Respondent
does not appreciate what relationçhip there is between supervision by or
accountability to the United Nations (assuming it to esist), and the to-
td1y distinct question whether Unitcd Nations findings and recommen-
dations are of any relevance to the Court's judicial functions. Even had
such accountability or riglit of siipervisiori existed, the Court would still,
in 1~espondent's submission, have been obliged to determine the issues
. .
IV, p.277.
As to ivhich, viPart III,sec.A, paras.16-20.supra.
IV, p. 293.
' Ibid.p. 294. RE JOINDER OF SOUTH AFRICA 3 74
between theParties strictly on the evidence before it, and would not have
becn cntitIed to rely upon disputed concIusions reached by the political
or administrative supervisory orgnns as being probative of tlic charges
made agriinst Respondent. 011ariy construction of the Court's iiinctions
they could hardly have been intended to consiçt of a mere nibber-stamp-
ing of decisions reached by a political body. At the ver? least the Court
must have been expected to make an independent investigation of the
merits of the dispute before it.
3. Accordingly, in Respondent's siibrnission, neither of the two above
propositions relied upon by Applicants could, even ifcorrect, serve
to render the said findings and recommeiidations relevant at the present
stage of the proceedings. Their on1y relevance could be on the basis
set oiit ahove 2,viz., as evidencc froni which an inference of mala Fdes
may bc draïïrn. For this purposc Applica-nts would have to show the
existence of a general consensus of honest and informed opinion fi-orn
which an inference can he drawn that no governmentalaiithority honestly
applying its mind to the problems of the Territory co~ildcorne to the
conclusion that Respondent's policies constitute the most suitable metl~od
for "promoting to the utrnost"-or in other words, that ttierc is no room
for honcst difference of opinion thereanent. At the outsct it must be
emphasized that this test could never be satisfied by showing merely
that certain aspects of Respondent's polici have been generally criticized,
or even iiniversally condemned 3. Every conceivable system of govern-
ment suffers from certain defects, which may be universally acknow-
ledged without there existing any general consensus that the system as a
whole is not a sound one. As has been sliown 4,the over-al1soundness of a
system can be evaluated only by comparison with possible alternatives,
and by weighing iipthe relative advantages and disadvantages of such
systems.
This factor is of particular relevance to the present enquiry. As has
been seen, in South African political, intellectual and even spiritual life,
the unceasing debate about group relations has on the whole a strongly
positive and constructive nature in that itconcerns itself with a com-
parison of the merits and dernerits of various proposed policies. Interna-
tional criticism,as ivillbe shown, is on a different level entirely.
4. The background to the international political agitation against
Respondent was briefiy sketched in the Counter-Mernorial$. In the course
thereof Respondent demonstratcd, interdia:
(a) the sudden manifestation and growing momentum, particularly
during the last decade, of a highly charged anti-colonial campaign
waged mainIy by certain States in AfI-icaand Asia;
(b) the patent policy adaptations made by Colonial and Trusteeship
Powers pursuant to this campaign, to the point of acceding to
demands for independence, on the basis of Native majority rule,
Viz., that the reports and resolutions assertedly ernanated iorganin and
through which the partiessought to settle their disa,d from the body allegedly
exercising administrative supervision.
Vide PartIII, sec. C, para. 39.
3 Which. as Respondent will show, iin any eventnot the case.
Chap. IV, paras.4-7,supra.
' 11,PP.440-450,380 SOüTH WEST AFRlCci
as a niatter taking complete precedence over economic, educational
and other aspects of development ; and
(c) the fact that the present proceedings form part of the same carn-
paign, aimed at securing for South West Africa as a whole, and
eveiitually for the Republic of South Africa as awliole, independent
rule by African Natives.
Froin the circumstance that AppIicants find it necessary to distort
certain aspects of the exposition, andto pour scorn and abuse on others,
but signally fail to adduce any facts to controvert it, Kespondent accepts
that the said exposition must be taken to be correct. It will consequently
at the outset be necessary only to point out Applicants' misrepresenta-
tions and to set the record straight.
In the first place, Respondent's purpose was not, as suggested by
Applicants ', to approve or disapprove of recent international philoso-
phies and events, but merely torecord them. This, indeed, was explicitly
so stated =.ln the second place, Respondent wishes to draw attention to
the following sentence in the Reply:
"The attribution by Respondent to such other Members of the
United Nations-comprising the vast majority of the whole-of
views and convictions so weak, indecisive or vacillating as to be
deenieclthe procluct of 'pressures' or 'political action' on tlie part of
other Governments is unworthy of serious reply 3."
It is, of course, clear that Kespondent was not guilty of such "attri-
bution". The only States ~vhich it was suggested were influenced by
pressures, were the Yowers administerinp Colonial and Trusteeship terri-
tories and such pressures were said to have becn exerted both by the
indigenous populations of the territories concerned and bu other States 4,
and not, as stated by Applicants, only the latter.
5. Whether it is indeed, as stated by Applicants, "weak, indecisive or
vacillating" of a government to be influenced by political pressures
exerted by othcr States or whether, on the contrary, it isrealistic, practi-
cal, and, indeed, moral, tvould appear tobe a matter ofopinion depending
on circumstances and the point of view of the person passing judgment.
Since this questionis not relevant to the prcsent proceedings, Kespondent
does not propose expressing an opinion thcreon. liespondent is con-
strained to Say, however, that such pressures existed and still exist, and
that they still play a vital role in the current internationapolitical cam-
paign against South Africa. Thus iiia receiit publication Professor
C. A. IV. Nanning, a well-known authority on intemationa1 affairs,
wrote the folloiving:
"The hostility of the non-white world can be explained without
reference to the ments of the apartheid program. Indeed, for Afro-
Asians the possibility that ithas any merits can scarcely arise. It is
the poIicy of white men governing black; and the only guod thing
that white men still wielding authority in Africa cari do is to abdicate
in favor of the non-white majority. Anything else they may think
1 IV, p. 294footnote8.
= 11.pp.449-450.
' IV,p. 295.
vidt 11pp. 441-447- REJOINDER OF SOUTH AFRICA 381
to do is by definition bad. In the eyesof the Bandung confraternity,
South Africa ought never to have esisted and ought now no longer
to exist. It is not a question of whether she is meeting her responsi-
bilities with humanity, wisdom, evcii n measure of self-abnega tion.
What in their eyes is wrong is not wbat South Africa map do, but the
fact that she should continue in a position to do anything at all.
, . . . . .. ,.........L I....
Nor should it be beyond South Africa's comprehension tliat the
major Western governnients may in these circumstances shy away
frorn identifying themselves with her position. lnthe world of tough
diplomacy old friendships may have to be set aside in deference to
new eexpediencies. At a time ivhen even Emperor Haile Selassie is
constrained to forget what he owes to South Africa, when Israel
finds it necessary to ignore the analogy between South Africa's
predicamcnt and her own, and ivlien Britain hasto be cautious even
in her support for Israel, it is easy to see why neither Britain nor the
United States can be- other than cautious in support of South
Africa l."
6. Apart from the emotional reasons mentioned by Professor Rlaniiing
for the hostility of the non-White world towards South Afnca, some
leaders are of coiirse also influenced by more practical ones. In a recent
address, President Nkrumah of Ghana delivered a plea for African unity,
which he motivated, ;filer aliaa ,s follows:
"\ire must unite for economic viability, firstof all, and thento re-
cover ozlr mineral wealth in SouthernAfrica, so that Our vast re-
sources and capacity for deveIopment will bring prosperity for us
and additional benefits for the rest of the world 2." (Italicç added.)
And later in the same address he stated that capital for develop~nent
in Africa-
". .. flows out of Africa today in gold, diamonds, copper, uranium
and other rninerals from southern Africa, Northern Rhodesia, the
Congo, and other parts of the continent 3".
Others again have an interest in fomenting disorder and chaos as a
preiude to estending their ideological and political influence in Africa,
andare consequently hostile towards South Africa as an effective bastion
of security in a continent where political violence is never far from the
surface. This applies mainly to Cornmunicts, and particularly the Chinese
vanety. As stated by Elspeth Huxley:
"What the Chinese want is trouble, as violent and bloody as pos-
sible. Rebellions in Kwilu, Angola, Cameroun are riglit up their
street. Revolution, in their view, iç not an unpleasant neccssity but
a positive good: a purge for the sick body, a consuming fire, a forge
from which tried and tested leaders will emerge. 'Revolution', Chou
En-lai told the Algerians, 'is the locomotive of hstory which will
1 Manning, C. A. W., "South Africa and the World: In Defense of Apartheid".
Foreign ABairs, Vol. 43,No. r [Oct. 1964). pp. 135-136.
"Africa's Finest Hour", Slrppleemenlwith'GhanaToday' of29 July 1964, Speech
deIivered by President Nkrumah at the Conference of African Heads of State and
Government in Cairo on 19 July 1964. p. 4.
3 Ibid. p.. 5. . .382 SOUTH WEST AFKICA
break through al1barriers. . .the people of Africa wnnt revolution' l."
The nature of Chinese intentions in Africa was confirmed by a recent
editorial in Peking's Jenmin Jih Pao which referred to the "excellent
re\roliitioiiary situation" emerging in the Congo 2.
I'hcre esist strong indications that, in accordance with this principle,
Comrniinists liave had a hand in niany of the recent revoliitions in Africa,
includiiig those in Zanzibar, the Congo and Cameroor-i 3; and, according
to the cïidence in recent trials, in an abortive attempt at initiating an
uprising iii South Africa 4.To what extcnt Communist influciice also plays
a rofe iii tlie campaigri of international vilification of South Africa must
remain a matter of conjecture. What is clear, however, is that both
Cliiriesc and liussian Communists would give a great deal to clcstroy the
present orderly and anti-Communist administration in Soiith Africa, and
no doubt use whatever weapon is available to them towards that end.
7. The hostility of the non-white world (anclparticularly niany ofthe
neidy independent States in Africa) towards South Africa, Ilas increas-
ingly and avowedly been directedtowards alienating the \Vestern nations
from South Africa, and in the process the new nations have made Full
use, as bargajning factors, oftheir voting str~ngth in the United Nations,
as well as of their actual and potential economic andstrategic importance.
In this regard Professor Thomas Hovet Jr., of New York University
writes :
"Charges of irresponsibility, then, can be leveled against the
..\frican states den it is evident that they are uninformed on issues
that tliey are willing to support in eschange for support on issues of
concem to them. Their constant argument is that their position on
any African issue will be supported by al1states who understand it
and tlierefore recognize the logic of thc African viewpoint. Rut for
responsible negotiatian most states do not expect to gct voting
support simply by crass bargaining on the principle of 'you vote for
me; 1'11vote for you'. Thus if the policy positions of the African
states are to be respected, they must show respect for the policy
positions of other states. And resolutions of the General Assembly
will not have an impact or be irnplementcd uiiless they are prissed in
an attnosphere of responsibility 5."
In the result the African States have managed to obtain a long list of
condernnations of Respondent's policics cven by iiations with close ties
rvithSouth Africa.
Hoivever, on analysis, the list becomes considerably less irnpressive.
In the first place, even a cursory examination shows that most of the
statcments, if sincerely meant, were based on entirely fallacious assump-
tions. 'I'hisaspect wiii be deait with later 6. In the second place it is
questionable to what extent the expressions of views reaHy represent the
'I.luxley, E., "The face behindthe mask: Some thoughts on revolutions".
Optima, Vol. 14.No. 2 (June 1964),p. 64,
The Star, 25June 1964,p. I.
. Vide the discussioon f Chineçe revolutionary activity in Airica by Elspeth
Huxley. "The face behind the mask:Some thoughts on revolutions", Optinza, Vol.
14, No. 2 (June 1964)~particularly at pp.63-64.
' Vide Chap. VI.para. 61, supra.
Rovet, T. (Jr.)Afvica in theUnited Nations (1963)p.. 2r9.
Vide para. 15,infra. KEJOISUER OF SOUTH AFRICA 383
considercd opinions of the governrneiits espressing thcm l,in particular
since tlie statements quoted by Applicants are al1negative iri ctiaracter
-tliey oppose or condemn a policy, without indicating or suggesting
tlirit the spokesmen have given anp real thought to possible alternatives.
It may be accepted that tne estreme 13lacknationalists do not have any
difficulty in this regard-they advocate immediate introduction of a
universal franchise paying no account to the probable effects thereof on
the standards of efficiency, prosperitp or security of the country, or on
the very existence of minority groiipç such as the Europeans, Coloureds
or indians. The attitude of militant Communism may be espected to be
sirnilar, for reasons indicated above 2.However, Respondent assumes that
outside of the ranks of estrernists, such an attitude does not conciouslp
exist, even in Africa. The question then rcmains: What value can be
attachecl to an expression of disapproval from anyone, even a rcpresen-
tative of a State, who has not given proper thought to, or decided upon,
a preferable alternative?
S. 'l'lie estentto which the condemnations of apartheid by or on
behalf of many States are entirely unrealistic, and also the extent to
which policies in Africa have indeed been shaped by pressure from other
States, appear clearly from the following example. Perllaps the most
offensiLe passage quoted by Applicants under the heading "Viewç of
Governments" emanated from hlr. Patrick Wall, a British member of
Parliamciit and United Kationç representative, who is reportecl to have
said :
"For ovcr 40 years, whntever the material progress tliat might
fiavc bcen made, the Soutli Afiicztn Government had dcprived thc
indigenous inhabitants of the Territory of their basic human rights.
HisGovernment's position wasrluite clcnr: it couldnotaccept asystem
whicli set men on different lcvcls bccause ofcolour, or which enabled
tlie men of one race to have complete power over the men of another
by ùcnying them the rights that should be theirs. Apurtheid mas
mgrally abominnble, in~ellect~~nllgyrotesque and spiritzcally indefets-
sible. Tliiis, the Government of South Africa was siifficientlp to be
blarned forthe existence in Soutli West Africa of a situation in which
tlic rights of the individual were set at noiight unless his skin was
of tlieright colourj."
This wns in 1962. In 1963 Rlr.Walt wrote as follows in a letter to The
Times :
"Britain's decision to give indeyendence to her African colonies
was both right and inevitable. 13utone of the main reasons we face
the difficulties so well described in your leading article 'African
Squeeze' is because the British withdrawal since 1959-1960has not
been planned and has been carried out at great speed.
Expediency has goverlaedprincifiles as a resrrlt.gtotonly a s~ll
nrtmber of Eztropeans, but a large nunaber of Africans are now fa~~lag
a declinein standards offreedom,seczrrity, and economyas independent
'1Not even to mention the people of the States concerned. to whom further
reference willbe made in paras. 16-39, infra. .- . . . ---
Videpara. 6, supra.
IV, PP 297-298.384 SOUTH WEST AFRICA
Ajrican States become ~olitically ~itfithoritarianand adofit socialisl
economies.
It is becoming increasingly clear that though the white man can
work in independent Africa he cannot have his home there as he
finds the new standards of justice, education, and agricultural
development intolerable. What therz is the future of the whites in
SoutherrzAfrica where some havebeen for over 300 years? They have
the willand thepower to fight and few doubt that they rvilldo 50.
Britain's faiIure to introducc multi-racialism against local
opposition at an earlier stage, and her equally disaçtrous failure to
fightfor multi-racialism when it was threatened by black domination
means that we will soon have to choose between supporting the
whites in Southern Rhodesia, Angola, Mozambique, and South
Africa or fighting against them. The recent United Nations action
against Southern Rhodesia was largely motivated by the desire to
deprive that country of her main defensive weapon, 'the Royal
Rhodesian Air Force. Britain used the veto and will have to do so
again.
For thefzstzsreofA frica asu wholea strong case can bemade ont for
the virtunl jbartition of the contirteutand /or the continuance of white
leadershipin the indzsslrial SozrlhProvided ihe leaders are firefiared to
edrrcatethemajority raceand gradtdullyto sharefiornerwith them. From
tlie British point of view not onlfamily ties butmajor investments,
over-flying rights, use of vital airfields and poras,well as access to
70 percent. of the Free Wrld's gold siipply ivould be sacrificedifwe
supported thePan-African drive to eliminate the white settler from
the continent of Africa. This choice rnay have to be made sooner
than many may expect 1."(Itnlics added.)
Mr. Wall's viewç on the governing factors in British yolicy in Airica
are instructive. It is also interesting to note that his condernnation of
apartheid does not imply any support for the extremist viewç refcrred to
above. But how practical is the policy proposed by him? It evoked an
immediate reaction from the wcll-known authoress and authority on
Africa, Mrs. Elspeth Huxley. She wrote:
"Even Major Patrick Wall, in his cogent plea (21September) for
facing facts in Africa, shies the harsliest factofall.
He urges a kiss of life for rnultiracialism in South Africa. whose
ower ïvith' the black majority.
leaders should 'gradua& share
Alas, muEi?iracialisis dead beyona ho#e O/ revival and therecan beno
shnring of Powe~,otzly seizzrreof iIfthe whites relinquish their grip
then the black majority will take it, as in Kenya-and as blacks,
African racialists, not as so-called 'civilized men' measuring up to
some common non-racial standard politically expressed in a qualified
franchise.
To sergewhites in soz4thernAfrica to share theirpolitical power is lo
urge th~mto commit raceszcicide. It may be right that they should
do so-if a principle is right morally then no doubt it should be
followed at whatever cost-but to expect them to embrace their
fate gladly is to ask a lot, and to force them into it a considerable
responsibilitg~Unjtkwefacethis bled refidiI do not think weshall be
1 TheTimes, 21Sep. 1963. REJOIKDER OF SOUTH XFRICA 385
able to cxt~icuteot4rselvesf~um Ilzemixtz~reof wishfztl thimkilag,good
interetio~zs,xpediency, and fuitk,cemented with g-zliltmoney, that has
fsass8d jor un Ajricun Policy in the past fed years. We believe in
compromise and face saving; most African nationalists do not.
Theirs, they believe, is the earth of Africa and everything that's in it,
and this they mean to have. IVliether we think this 'reasonable'
or not is beside the point. Tt is no good going on trying to ride a dead
horse '." (ltalicsadded.)
Soon therenfter aletter by one Vivian Uradsworth nppearcd in support
of lilrs. Huxley. 'l'liisreaas follows:
"1 attendecl the 1960 Constitutional Revicw Conference for the
Federation of Khodesia and Nyasaland as a Government adviser.
OfficialSecrets legislation forbids me to reveal what transpired there,
but when tlicrecords become available to the historians they will
prove beyond doubt the contentions of JIrs. Elspeth Huxley.
The only people who have ever wanted partnership have been the
'Whjtes'. For the African leaders tlie only issue has been power and,
for thc British Government, appeaseme~it 2."
9. In January 1964 Mr. Wall set out his views at greater Icrigth in an
article inThe Yorkshire Yost. He also clcscribed the Hritisli policy as one
of "appeasemcnt towards pan-African ambitions" 3.This hc arnplified by
drawing "a paraHel between the policy of appeasement in Europe in the
1930s and the policy of appeasement in Africa in the period 1959-1963" 3.
Although still payirig lip-service to "sorne form of multi-racial solution"
for South Africa, he stated:
"Four yearç ago, people werc tliinking of multi-racialism as an
equal sharing between black and white, the former contributing the
numbers and tlie latter the know-liow. As the wind of chringe became
a hurricane, it became clear tliat tlicre was to be no sharing, and
that as soon as the Africans had a majority of one in the local
Parliament they would demancl cornpiete domination which they
could obtain within two years.
There was not even to be a partnersliip based on African political
power and European economic power, as African independence
became synonymouç with the one-party State and African socialism
left less antl less roomfor European private enterprise 3."
That it would be immoral and unprnctical to attempt to force the
Europeans out of South Africa, was also recognized by Mr. Wall. He
stated:
"The clenial of independence to Soiithern Rhodesia will be the
nevt step down this slippery slope, followed by the exploitation of
the High Commission Territories as bases for sabotage against South
Africa. People Say that the Arabs can never push one million Jews
into the sea. but the same people seem to assume that four million
Whites in Southern Africacan be forced into the ocerin.
Many families have been there since the 16th century; only with
their heIp can the vast econornic potential of the continent be
deveIoped; they know that unleçs white leadership is prolanged until
The Times, 24 Sep. 1963.
. Ibid., 8Oct. 1963. . .
The Yo~kshire Posl,16 Jan. 1964.386 SOUTH IVEST AFRICA
the African continent kas gat over the first pangs of independence
they will have no future l."
Mr. Wall's proposcd solution was adumbrntecl in the last sentence of
the above passage. It was further elaboraicd as follows:
"Firm action now by Britain and the United States could still
stabilise the continent for the next decadc on the basis of partition,
the line ofthe Zambezi dividing the black-lcd north from the white-
Ied soütli'."
IO. Respondent has devoted some space to the views expressed by Xr.
Patrick Wall, not only because of the status of their author and the self-
evident significance of their contents, but because they illustrate two im-
portant considerations regarding views thnt have been expressed on
bellaif of governrnciits concerning apartheid or sepürate develoyment.
The first is thnt. for various reasons a condcmnntion expressed at the
United Nations cannot by itself be regarded as ciffordingany significant
evidence of the merits or demerits of the yolicy: if this were not so, it
would not be possible to understand how Jfr. Wall could, in al1apparent
sincerity, have followed up the condemnation at the United Nations with
the published viewsquoted above. The second is that criticism of Respond-
ent's policy, without reference to practicable alternatives, serves little
purpose. In his later wvritingsin the press MT. \VaIl-in contntrast with the
ordinary practice of commcntators in international politics, and, indeed,
with his own quoted address at the United Xations-did give attention
to the question of a positive alternative policy. It seems atleast doubtfiil,
however, whether the policy suggested by him would be an irnprovement
on separate development. It seems to have been designed only for ten
years to corne-tlie author possibly assprnes that at the end of another
decade of White rule, the objectionable features which he now sees in
multi-racialism would have fallen away 3.This seems in Respondent's
view, a very doubtful assumption, to put itat its lowest.At the same time
he appears to assume that the South African Bantu would be satisfied to
defer alisignificant progress towards self-government for ten years. Again
this assumption doesnot appear to be a redistic one.
II. Among the nations who have in the past espressed critical com-
ments on Respondent's policies were the Scandinavian countries. As the
Danish llinister of Foreign Affairs once said: "Numerous manifestations
of one kind or another bcar witness to the intense preoccupation of the
Danish people with the question of apurtheid 4."
A similar preoccupation seems to prevail in other Scandinavian
countries. It seemed at one stage that these countries were beginning to
realize that it was not enough to oppose apartheid, but that some thought
should be devoted to an acceptable alternative. This approach was mani-
fested, i~feralia in the following words of the same Danish Minister:
"[A$artlleid'sj abolition wiii, ..pose other problems .. .We must
The Yorkshive Post, 16 Jan.1964.
. Ifide further para. 13, infra.
Althoughit issignificant that he has become much more guarded in his referen-
ces to multi-racialism as possible solution than in the letter commented on by
Blspeth Huxley.
' U.N. Doc. A/PV. 1215 (25 Sep. 1963).Eighteenth Sessiun, Gneral Assembly,
Provisimal Verbntim Record 0) the ~~15thPlenary Meeting, p. 23. REJOINDER OF SOUTH AFRlCA 387
face the fact that the great majority of the European population in
South Africa urrongly assume that abandonment of white domination
means abandonment of their own existence. It is our duty to prove
to thern that that isnot so. It is ourduty to demonstrate that there
is an alternative to catastrophe and that the onlyroad to this altern-
ative goes through the abolition of apartheid.
......... .,...,.. . ,. a. .
In other wordç, if the approach of the United Nations has so far
followed a single line, we feel that it has now become necessary for
the Assembly to formulate a supplementary policy, to make clear
to the world what ~vewould iike should take the place ofthe present
set-up-a truly democratic, multiracial society of free men, with
equal rights for ail individuals, irrespective of race.
Changinga society so deepIy rooted in apartheid and dominated by
a minority into such a free democratic, multiracial society may weU
prove to be a task which cannot be solved by the people of South
Africa alone. 1 feel convinced that in such a process of development
the United Nations wiil have to play a major role ifwe are to avoid a
tragic disaster. We must consider how, if necessüry, we can in a
transitional period contribute to the maintenance of law and order
and the protection of life and civil rights of al1individuals.We must
likewise consider how the United Nations can best assist South
Africa in laying the foundation of its neiv society.
In Ouropinion it ishigh time for the Assembly to give thought to
the positive policy tobe pursued in South Africa ...
The whole question formed the subject of discussion between the
Foreign hlinisters of the Scandinavian countries. liespondent has alwaÿs
asçumed that the interest displayed by Scandinavian countries in South
African affairs was well-intentioned, and it welcomed a departure from
the general line of negative criticism normally encountered at the United
Nations. At the same time it considered that these countries were at a
great disadvantage in tlzeir attempt at playing a constructive role re-
garding South African affairs by reason of their remoteness. geographi-
caily and in terms of experience, from African realities-a disadvantage
which appears very çlearly also frorn the above staternent by the Danish
Minister. In order to assist them in their self-imposed task, Respondent
consequently issued an unconditional invitation to the Foreign Ministers
of Sweden, Dcnmark, Finland, Iceland and Xorway to visit South Africa
with complete freedom to visit any place or speak to any person Z.
However, to Respondent's surprise, the invitations were declined on.
the grounds that-
".. . the Government . .. feels that the Minister could only under-.
take the journey if itwould serve the purpose of furthering progress
towards a solution in accordance with the principles of the United
Nations Charter which, in the opinion of the Government ...
regrettably does not seem to be the case at the present time 3."
U.N. Doc. A/PV. 1215 (25 Sep 1963). Eighleenth Session, General Assenebly,
Pvwision~l Verbatam Record of the1215th PIenavy Meeting, p.26.
* U.N. Dm. AIET. 1236 (IO Oct. 1963).Eighteenth Session, Genesal Assembly,
Prmisimal Rccosd of th1236th Plenary Meeting, p.II.
Departmental information. Text ofthe Swedish, Danish, Finnish and Icelandic
reply. The Norihtegianreplwas in similar but not identical terms.3ss SOUTH iVEST AFRICA
From thiç reply Respondent could only assume that first-hand and
accurate information in sornc ïray constitutcs an obstacle iii the way of
delegates searching for a solution in accordance with what ttiey consider
the principleç of the United Nations Charter to be. Kespondent had often
before gained the impression that many delegates adopted such an
ap roach, but it had never before been espressly so stated.
Sn Scandinavian initiative. certain "experts7' were. howcvor. ap-
pointed to examine coiiditions in South Africa. Furthcr reference will be
made to theni in the next pnragrapl-i.
12. The same attitude of an estrerne readiness to criticizc coupled with
a complete reluctance to propose an alternativemay be seen in the report
of the so-called "recognized experts", referred to in thc previous para-
graph. They were appointed in terms of a Securitp Council resolution
requiring them to-
". . .examine rnethods of resolt~ing the present situation in South
Africa through full, peaceful and orderly application of human
rights and fundamental freedoms to al1inhabitants of the Territory
as a whole, regardless of race, colour or creed . . . l".
Although outspoken in their condemnation of Kespondent's policies
(which condemnation was bascd largely upon a distorted. slanted or,
at least, inaccurate rendering of iacts) the so-calied experts could, wiien
it came to suggesting an alternative, do no more than pronounce a num-
ber of platitudes and suggest the calling of a South Africa~i National Con-
vention to draw up a new constitution for the country 3.
13. In assessing the significance of opinions expressed by governrnents
on the merits or ethicsof Respondent's policy, substantial weiglit should,
it is submitted, be attached to the above-mentioned fact that they have
on the whole apparently not considered the problems involved in any
alternative policy. In this regard Professor Manning said:
"Where the irresponsible foreign oniooker has merely to insist that
apartheid is 'morally wrong'. the responsible Soiith African has
rather to ask himself whether there is any less immoral npproach to
South Africa's problem '."
Or, asstated even more pungently by a foreign journalist:
"A sirnpleton can criticise apartheid, but it will take a very wise
man to provide an alternative system ïvhich will work and at the
same time improve the situation in South Africa 5."
The irrationality of the approach-which condernns a policy without
having regard to possible ilternatives is occasioned, it issubmitted,by
the fact that a great part of the criticism directed at South Africa is
motivated by emotionnl rnther than rational considerations, as has been
noted by Professor Manning in the passage quoted above < Where reason
'
U.N. Doc. 515658, 20 Apr. 1964, p. I.
2 For discussion of examplcs hereof, vide Letter daled zandMay, 1964 tvo>nthe
Pe~maxent Represenfalive of South Africa addressedto the President of the Security
Council. S/5723(28 May 1964).
U.N. Roc. SlgG58, 20 Apr. 1964, p. 18.
' Manning, C. A. \Ir."South Africaand the iVorld: In Defense of Apartheid".
in Foreign Aguirs. Vol.43, No. i (Oct.19641,p. 136.
Beilby, L., "Living with South Africa".The Daily Telegraph. 24 Sov. 1964.
Vide para. 5, supra. REJOINDER OF SOUTH AFRICA 389
plays any role at all, it is generally directed not at the merits or demerits
of Respondent's policy, but at the interests of the State on whose behalf
the criticism may be voiced. These interests could take the iorrn of the
naked acquisitiveness apparent from the addreçç of Yresident Nkrumah
quoted above l,the political or ideological ambitions of militant Com-
munism, or merely of the need to gain or keep the favour of the so-called
"anti-colonialist" States, or avoid falling into disfavour with those
States.
14. It is apparent that no impartial observer can draw any conclusion
regarding the merits of Respondent's policy from the factthat it has been
criticized on behalf of a number of States, where the criticism uras moti-
vated by the features considered in the previous paragraph. The extent
to which considerations other than the merits of a pnrticular policy weigh
with certain delegations, has been pojnted out also in another context
by Professor Manning, who said that-
". ..in recent debates at the United Nations it has becorne increas-
ingly dificult to impute much sense of reality to delegations whicli
could join in ademarid that South Africa take no action against those
accused of attempting to destroy with higliexplosives the instal-
lation~ upon wliich the country's viability is depcndcnt 2".
15. Allied to the lack of reality ieferred toabove,-regard must be had
to the consideration that, even in the passages quoted by Applicantç,
it is apparent that the speakers concerned either had no accurate con-
ception of the true nature of Respondent's policies, or deliberately
exaggerated, rnisrepresented, or distorted thern. Thus, almost without
exception, Respondent's yolicies were represented as being intended to
oppress the non-White population for the benefit of the Whites, or even
as being based on "an ill-conceived notion of the superiority of one race
over another" 3.That this is not so has been demonstrated repeatedly '.
Respondent accepts that in many instances wrong impressions about
the nature and effect of its policies are honestly and scriously maintained.
The picture of South Africa presented overseas has so often been one-
sided, exaggerated or completely incorrect that some governments or
their representatives may well have been misled thereby. In addition,
many persons wcre no doubt attracted by pliilosophies or theories of
rnulti-racialism which exerted a strong apped on the emotions but have
been singularly unsuccessful in practice. As the fruits of Respondent's
policy become visible, and the defects of alternative policies can no longer
be ignored, Hespondent expects an ever-improving world ciimate of
informed opinion regarding the principles of separate development.
16. Staternents mide by a governient during debates in the United
Nations can, for the reasons set out above, not be assumed to represent
a reasoned asseççment of the meritç of Respondent's policy based upon
substantially correct information. Even less can they be assumed to
represent the universal or even majority views of the subjects of the
govemrnents concerned. Outside southern Africa the merits of Respond-
l Vide para. 6, supra.
Manning, C. A. W., "South Afrjca and the World: ln Defense of Apartheid",
Foreign Aflairs, Vol43.No. T (Oct. 1964)P. '37.
Representative of Malaya. quoted by Applicants at IV. 300. .
.. Vade,e.g.,II, pp.457-488. also Chap. V, paras. 7-12, supra, and ChapVIII.
rnfra.3g0 SOUTH WEST AFRICA
ent's policies are matters of largely academic interest of which the man
in the street knows very little and normally cares even less, and which
fa11outside tlie political arena altogether.In southern Africa the position
is of course totally different. As has been seen l,in South Africa this
policy has obtained ever-increasing support from al1 sections of the
population. In the Central African Federation the voters toycd with the
concepts of pürtliership and multi-racialism but, as noted elsewhere,
policies based on these concepts did not corne iip to expectations, and
many erstwhile supporters of partnership are today vers sorrp that a
policp of separation was not attempted years ago 2.
17. Since the rnerits of Respondent's policies have in the nature of
things never been systematically canvassed before the people of any
foreign State, and no vote taken thereon, or the views of the people
ascertained in some other way, it follows that nobody could say either
that the informed opinion in any such State is in favour of separate
development, or that it is opposed thereto. Respondent does however
make bold to say that among foreign commentators who have evamined
the situation with a view to deternlining the best policy from the point
of view of ail the inhabitants O/ South Afuica, the policy of separate
development enjoys substantial and ever-increasing support, and where
not supported, is atleast given serious consideration as a reasonable
and sincerely ineant attempt at solving an intractable prohlem. Some
examples of favourable comment were furnished in the Counter-
Mernorial 3.Further examples of the type of consideration which Respon-
dent's policies have been enjoying in responsible circles oi7erseas \vil1be
given in the next succeeding paragraphs.
18. In a recent article in the Schweizer Alonutshejte, entitled "South
Africa-an attempt at a positive appraisal", Dr. IVilhelm Ropke, Profes-
sor at the Graduate School of International Studies, Geneva, wrote,
interdia, as follows:
"In order to understand the issue and itsunique nature, one must
start with the indisputable fact that the Whites of SouthAfricahave
not merely a doubtful right to the land ~vhichthey have settled and
brought to the highest prosperity, but, rather, they are completely
jiiçtified in owning and controllingit4."
"Nor must we lose sight of the fact that the South African Negro
is not only a man of an utterly different race but, at the same time,
stems from a completely differenttype and level of civilization. One
of the most shocking signs of the intellcctual confusion of our times
is that too few seern to ask theinselves if it is at al1possible to wead
nation worthy of the name out of such utterly different ethnic-
1 Vide Chap. Vf. para. 5,supra.
2 Videvan Eeden, G., Die VuurBrand Nader (igGq),pp. 140-141. Respondent
expresses no opinion on the question whether or not such a policy would indeed
have been practicatile in the Central African Federation or ofyits constituent
States, where circumstancesdiffer verymateriatiy from those obtaining iSouth
Africa and South West Africa.
, II, pp. 484-488.
- 4Ropke. W., "Stidafrika: Versuch einer WürdigungW. Schweizer Monatshcftc.
44th Year, No. 2 (May 1964). pp. 103-104. REJOlSDER OF SOUTH AFRlCA 3gr
cultural groups and, on top of that, to organize it politically as a
democracy l"
'
. " 'Apartheid'concerns a separatioii of the races, by means of which
the South African government is trying to solve, or at least render
bearable, the ethnic problem ofthe country. \ire,as outsiders, should
make an honest efîort to understand thetrue nature of the issue-its
uniquencss and the tieaviness of the burden it represents. Llrhat-
possibly in unattractive fashion-this Dotch word is meant to
convey is the effort, at the cost of great sacrifice, to do something
completely reasonable, that isto Say, keep apart the immiscible
ethnic groups through setting up of autonomous areas resenred for
the Negroes, the first of which has now been given over to the
pertinent Bantu tribes iinder the name of 'Transkei'.
If we find it hard, in principle, to reach a just verdict, we should
remember other cases in whjch the separation of ethnicaIly hetero-
geneous groups, painful as the operation generally is,is considered
today as unavoidable 2."(Translation.)
"Apartheid means, therefore that certain appropriate possibilities
for development willbe given the two ethnic groups in South Africa,
black as well as white, through the establishment of 'Bantustans'.
.This isthe specific forrn in which South Africa pursues the policy of
- 'decolonializing' and 'development aid', which corresponds to this
coiintry's needs. No expense is being spared and al1the experience of
the IVhites wlio have had contacts wiith Negroes for centuries is
being utilized. One of the major aims of this policy is to raise the
educational standards of the Bantus, already higher than in any
, other part of Africa, and to teach thern modem agricultural
methods 3." (Translation.)
"One may judge the chances of success of this policy as good or not,
.
but it could.hardly be called stupid or evil 4."(Translation.)
"At al1events, it isunfair to reject this policy ifone has no ideas
for a better solution.Only completely confused ideologists such as the
so-cailed 'liberals' in South Africa and their counterparts in other
countries can seriously propose that one should give the blacks full
political equality within the framework of a unified South Africa,
thereby actually handing over to thern jointly undisputed control
of the country. This ~vould be nothing less than advising national
suicide 5."
rg. Dr. Max Larnberty, Professor at the HogerInstituut voorOverzeese
Gebaeden at Antwerp, wrote in De Vlaamse Gids:
" 'Integration' can be a greater evil than 'segregation' when it is
not accepted by al1 the parties concerned, when it is achieved not
by free choice but by,force.
A policy of separation, which leads to the establishment of separate
institutions which grant to each of the groups differing racially,
culturaiiyor religiously its own possibilities, can, on the other hand,
1 Rtjpke. IV.,op.cit,p. 104.
Ibid., p. 105.
3 Ibid.. p. 106.
Ibid:. p.107. . .
Ibid., p. log. . . 3g2 SOUTH N'EST AFRlCA
be a benefit when it gives ali the groups concerned the possibility of
completely developing and realising their own way of life.
The attitude which most States adopt towards South Afnca is
unçound. It has only become possible by a great lack of under-
standing and a very dubious opportunism 1." (Translation.)
20. After a tour of South Africa by three French senators (Professor
Georges Portmann, Dr. A. Plaît, and Alr. L. Yung) the leader of the
group, Professor Portmann said, inter alia:
"We have been through the Transkei. .. and were astonished by
the results obtained there. le saw the schools and the roads. They
were perfect. We talked to Native farmers and mcmbers of the
Native Government. Our impressions arc very, very good ...
We do not know what the ideas of the South Afncan Government
are, or what it intends doing in the future,but we can Say that we
cannot fault the result of Bantustans as we saw it--even though
Bantustans may not be the answer to South Africa's problems =."
21. A German publisher, Mr. Waldemar Schutz, Ras reported as
saying after a visit to South Africa:
."13antustans . :. are a wise developrnent. The Government is
giving the Africans the right to develop in their own sphere . . .The
- critics of South Africa havenot looked at the position closelyenough.
If people Say that the measures taken by the Government are forthe
. . benefit of Whites at the expense of non-Whites theyare wrong.
Present Govemment policy is for the benefit of everybody 3."
He added thnt he would soon be publishing an exhaustive book by Dr.
Peter Kleist, formerly of the West German Foreign Affairç Department,
which.wouid reflect the same opinions.
22. '1n the welf-kno~vn Dutch paper Elseuiers Waekblad ~rk. F. A.
Hoogendijk wrote :
"It is a remarkable experience travelling through the country and
participating in the problem of apartheid from nearby. Great
apnrtheid works reasonably wellin practice. It isthe best of the worst,
as Winston Churchill once said of British democracy. Tt is the only
way to avoid creating chaos among the various popiilation groups
and to see to it that one population group does not oppress the other.
That the Europeans in South Africa are now oppressing the non-
Europeans, is untrue 4." (Translation.)
23. In the National Review, published in New York, Professor Thomas
MoInar wrote ris follows after a visit to South Africa:
. . "The Govcrnment of South Africa today 'istotally committed to
the Bantustan policy. It hopes to secure for the Bantus a number of
territories where they ïviil eïrentually exercise self-rule. This is the
. - foreign aid to which the majority of the whites and man- pf theon plus
politicaIIy conscious Bantus aie fully committed. The Iatterlthat
Lamberty, M., "Wat betekent pluralisme (II)?"inDe Vlaanise Gids,SO. i2 of
1963, pp. 811-812. . ...
Sunday Tames, II Oct. r964,p. 9. . .,, '. ,
The Natal Mercury, IOOct. 1962, p. 6.
' Hoogendijk, F. A., "De verdachtmakingen en de ~erkelijkheid':,:.Elsebiers
Weckblad, 4 Apr. 1964,p. 3. . . , . ' KEJOINDER OF SOUTH AFRICA 393
is, the politically hep Bantus-do not want a qualified suffrage that
will keep them in a permanent minority situation, nordo they want
one-man one-vote for the simple reason that they know that would
soon lead to a Bantu majority in parliament, and even sooner to
general civil \var and massacre since the whites and the sizable lndian
minority would never accept such a situation.
Instead they favor the Transkei esperiment: the creation' of a
semi-autonomous state in the traditional homeland of the Xhosas.
........................
Thc Verwoerd government is not engaged in.window dreçsing
designed to placatc world opinion ; itis earnestly trying to develop
Bantu talent, yotentiality and prosperity l."
24. A retired ~nited ~tatei Circuit Court &dge, Judge MaxM. Kors-
hak, is qiioted as saying after a visit to South Africa:
"1 came here with estreme hostility ; ready to criticise and scorn.
1 shall leave as a dedicated protagonist of the racial policies of this
Government ~vhether these are popular abroad or not '."
25. In a letter to Tlze Times, Lord Milverton, former Governor of
Nigeria, wrote, interalia,as follows:
"The whole basis of the apartheid policy is that the South,African
problem is amulti-national one, not a multi-racial one.
\mat is the alternative to apartheid? Africa is strewn with the
wreck ofmulti-racial dreams. Surely there is everything to be said
for separate clevelopmei~t-a system which guards the human
dignity of both black and white Africans by providing that each
should govern themselves ...
Africans are beginning, in large numbers. to appreciate the inde-
pendent future offered to them by the policy of apartheid, but the
encauragcment of unrest is a Communist interest, and it seems to
me a pity that those who have no use for Communist principles or
practices should unconsciously be playing thejr game 3."
26. One of the editors of De Telegraaf, the well-known Dutch paper,
wrote :
". .. South Africa proceeds to exploit its fabuious riches and to
educate its Bantu with love and efhciency at a cost of large amounts
of money.
South Africa will also maintain its 'gre,attapartheid policy, con-
sisting of the establishment of separate Bantu states, not because it
considers it very pleasant, but because nobody has been able to
demonstrate a.practica1 altemative for this policy which has its
roots in history '." (Translation.)
27. The famous author, John Creasey, said:
".... 1 have no doubt that South Africa iç a freer, happier, more
prosperous and more united country than most peopleoin England
realiçe.
........................
.
~55-156.ar, T.. "First Stepin the Transkei", Nataolaai Review,25 Feb. 1964,-.p.
2.SundayExpress, 20Sep. 1964, p.15. . .
3The Times. 17June 1964.p. 13.
+Dc Telegraaf. Mar.1963, p. z. .. ,. . . ...- ' ... k 394 SOUTH \!'EST AFRICA
1 hope 1 will be forgiven for saying that my preferençe is for the
Rhodesian approach to the problem of Black and White. That
doesn't alter the fact that on the surface at least there is a great
deal to indicate that the South African approach is working much,
much better than most people at home dreamt was possihle l."-
28. Wans Edgar Jahn, who has earned international recognition as an
impartial and objective observer, stated:
"The Bantü reserves existing in the country are to be made
independent. There the Black man is to govern, administer and de-
velap himself.The1Vhite man isnot allowed to intrude.He is,however,
encouraged to develop industries on the borders between the White
and Black areas thus creating employment opp?rtunities for the
population of the reserves. The Black intelligentsia educated in the
schools and universities are also to be deployed in the Bantustans.
In principle the Bantustan project is to be recommended. Millions
of Blacks have been living in these reserves for generations=."(Trans-
lation.)
29. Major Allister.Smith of the Salvation Army recently wrotc in
aCanadian religious magazine after a viçit to South Africa:
"The [South African] government has recently granted self-
governrnent to nearly two million Africans living in one of the most
fertile and beautiful reserves, where no white man may own land.
Modern medical and educational facilities are provided for Alricans,
mostly paid for by the \mite tax-payer. Many African chiefs and
others support the Governrnent policy and are not agitating for inte-
gration, Rut people who have never visited South Africa are so
blinded by hateful propaganda that they can believe nothing good
of the country 3."
30. Drs. A. M. den Hartog, a teacher at the Catholic College of St.
Joris at Eindhoven, Holland, recently visited South Africa at his own
expense in order to examine the situation there. His report, entitled
"Impressions of a Roman Catholic regnrding South Africa", includcd
the following :
". ..I also encountered persons of my own faith. It is customary at
present to say that we, because we are Catholics, must also be against
South Africa. My conclusion now is that most of my CO-religionists
support their leader, the Archbishop of Bloemfontein and that they
consider the policy which is applied in South Africa to be just and
in accordance with the Doctrine of OurChurch. Natmally everybody
does not agree with everything, but as regards the main lines the
people are in complete accord.
I am of the opinion that South Afnca is acountry with a truly
Christian population, and that it is a bastion in the turmoil of
Africa, from which civilization will at some stage radiate forth.
May God lead her in accordance with the same sentiments of
Sunday Times, 30 Sep.1962,p. 5.
2 Jahn,H. E., Vom Ka+ Nach Kairo: Afrikas \Veg InDie \ireltpoliti(1963).
P.31.
3 Smith, A.,"TheTruth About South Africa", The PcopIcs Magaaine, Vol. 43,
No. 10-12 (FourthQuarter, 196~).p.15.
4 Quoted in Chap. VI.para.50, supra. REJOISDER OF SOUTH AFRICA 395
justice as heretofore and map He open the eyes of some fellow
Christians in our part of the world so that they can seethat we are
on the wrong road in our judgment of Good and Evil l." (Trans-
lation.)
31. In a Dutch religious publication, De Rotterdame Kerkbode,an
article on the Church and Mission in the Republic of South Africa by a
well-known Dutch theologist, lieverend G. H. H. Gijmink, ended by
quotingthelateDag Hammerskjold assayingafterhisvisit to South Africa:
"1 understand your problems completely. 1 am convinced of the
complete integrity of the people who are executing your policy of
separate development. hly visit ha5 givenme a better understanding
of your plans. It is cleathat much criticisrn of South Africa is based
on wrong information and is one-sided. 1 hope that God may give
you time to do what you propose doing 2."(Translation.)
32. IVilliam F. Uuckley, Jnr., concluded an article on South Africa
n theN<'ionalRmiew with the following invitation:
Some day; when you have nothing else to do, corne up with a
solution for South Africa, won't yoo? Rut remember the rules of the
game. All the mnrbles have to end up each in a cavity-you can't
just throw a few of them away, to make the game simpler. The
people who picked apartheid are solidly committed to it; it is a
radical solutionin which they are investing their wit, their passion,
and their means; they are men and women of urbanity and culture
and understanding, and of courage, who are not fooling themselves,
or t~ng to fool the world; men who, the more ignorant of them,
feel the same contempt for the aimlessness of the American approach
to race relations that Arnericans, the more ignorant of them, feel for
the schematism of the South African approach. They may be xvrong,
as we may be; but we should try at least to understand what itis
they are trying to do, and deny ourselves that unearned smugness
that the bigot shows. I cannot Say, '1 approve of Apartheid1-its
waq" are alien to mjl temperament. But 1 know now it is a sincere
people's effort to fashion the land of peace they want so badly 3."
33. In an article in the Haagsche Post under the title "Apartheid-
purely objectively" the following was said:
"Without a trace of fear for the public opinion, Prof. Pieter van
Stempvoort (52) stated in n television interview that apartheid is a
healthy solution for the South hfrican racial problem. He had just
returned from a three weeks visit to South Africa, where he acted
as expert witness in an action for the rehabilitafion of Professor of
Theology Albert Geyser 4." (Translation.)
After pointing out that Geyser vas knoivn to possess moderately pro-
gressive views on apartheid,the article stated that T.V. viewers expected
Van Stempvoort, a noted theologist, to return propagating equal rights
for the Eantu population. But, the article continued, ". ..he found that
l NZ,4 W'-Kroniek,1stYeu, Xo. I (15Sep. rgG4).
Gijmink, G. J. H., "Kerk en Zending inde Republiek van Suid-Afrika", De
Rotlerdamse Kerkbode,gMar. 1963.
Buckley, W. F., "South African Fortnight",Nalional Reuiew, 15 Jan. 1963,
P.23.
' Haagsche Posb.8 June 1963.3g6 SOUTH WEST AFRICA
policy of the South African government was realistic and completely
justifiable" l.
34. The Reformed Ecumenical Synod, an ecumenical body representing
approximately 30 Churches and nearly 3 million members of different
colours and races in various parts of the world, recently expressed itself
on racial matters, interalia, as follows:
"2. Synod states as its beiief that God's Word does not teach
either racial integration or separate racial development as a .uni-
versally regulative .principle expressing God's will .for our Christian
conduct in race relations. God's Word speaks relevantly to specific
racial problems but it cannot be simply assurned that every form of
separate racial development is either biblical or anti-biblical;
neither can it simply be assumed that every form of racial integration
is either bib1ical or anti-biblical. The specific and highly cornplex
societal relatiunships raithin each land and nation must be taken into
careful account when applying the biblical principles of love and
righteousness for al1men of al1races and al1nations.
.,.... ..................
4. Synod declares that where members of one ethnic group or
nation permanently Livetogether with other ethnic groups ornations
within the same country, al1 individuals, groups and nations shall
be equally accorded God-given rights before God and the law, and
each individual, group or nation in the exercise of God-given rights
must not violate the God-given rights of other individuals, groups
or nations. If twoormorenatiolzs orethnicgroups in thesamacountry
wisk to maintain their respective identities, territorial sefiaration
betweenthesenations or ethnic groufiscannot be disafiProved on the
basisoffirinciple 2." (Italicsadded.)
35. Reverend G. J. H. Gijmink, referred to above ',wrote in a
pamphlet entitled "Thus 1 saw South Africa":
"General impression: economically and socially the Bantu are
devetoping fast. In the long run this can be overtaken onlv by
integration or a territorial separation iniplemented as vigorously as
possible, whereby al1 black peoples would achieve completely their
own chances. This is now Government policy. Would it, in view of the
Biblical teaching of the fa11 of man and the many illustrations
thereof in history (Cyprus), not be the ibest? 1sintegration not too
idealistic and is autogenous development not more sober? 4" (Trans-
lation.)
36. Stanley N. Shaw, editor of Whaley-Eaton Service, Washington,
D.C., wrote:
"Since 1949 the successive South African Governments have
tended increasingly to be reform and welfare minded. Leadership
has been in the handç of dedicated reformers hellbent for action
much in the style of our own New Dealers of the 30's.
/ *
lHaagsche Post, 8 June 1963. .
Acts ofthe Reformed Ecu~nenicalSynod 1963(19631p,. 225.
Vide para.31,supra.
4 Zo zagik Zuid-Afrika, Reisdagboevan G. J.H. Gijmink, Herv. Pred. te Rotter-
dam-Grotekerkwijkgemeente. Voorzitter N. 2. A.W., under "Johannesburg,
13 April[ig64]". REJOINDEH OF SOUTH AFRICA 397
Confident of the right as Cod gives them to see the right, -they
trample any opposition, and yet the strange fact of al1 this is that
they have the single simple objective of bettering the future for
black and white alike, for protecting al1the underdogs l."
37. Dr. Max Yergen, an Americaii Negro and a well-known consultant
on African affairs, waç reported as follows while visiting Umtata, the
capital of the Transkei:
"Separate development is a 'realistic policy' marked by quaiities
of sincerity and honest commitment, said Dr. Max Yergen, Negro
guest of the National Foundation, at a dinner in the Transkei Legis-
lative Assembly restaurant last night.
--
1 do not hesitate to Say that the responsibility rests with the
rest of the world to understand separate deveIopment'more fully
than they do now and to give South Africa a more honest, objec-
tive and fair judgment.
...... _........... , , . .
The geriuineness-and sinceritywith which the poiicy was backed
made South Africa 'in every sense a bright spot on the continent
of Africa-a spot which can grow eve? brighter when the rest of
the world understands separate development better' =."
38. Démians dlArchimb'aud, writing in La Revue fiançaise, said:
. "Tlie celebrated geographer EliséeReclus said about 1880: 'Be-
tween populations which are mixed but separatcd by origins, tra-
dition, customs, and social condition, there is no other alternative
than gradua1 assimilation, disappearance through servitude or mas-
sacre'. Not one of these solutions is applicableinSouth Africa today
and a division of territory seems the sole possibility.
. This should suffice by showing amply that South Africa, far from
oppoçiiig the general current of emancipation which unfurls 'in
Africa, on the contrary navigates cIearly in this direction. Through
apartheid she anticipates the big socio-political developments ivhich
are appearing from one end to the other of the continent of Africa.
There is only one reservation: she wants to see the Rantu pcopie
" progress in an orderly and systematic way towards a democratic
governmental autonomy and not 'to go headlong by chance and
disorder towards chaos and anarchic totalitarianism, as has corne
about in the Congo and in so mnny otlier States recently and prema-
turely ernancipated 3.'j (Translation.)
39. In a recent article inLUQzsbtidienne ,he foiIowing was said:
"In the face of this check of 'decolonisation' which is rapidly
changing into 'decivilisation', by reason of an absolute disregard
for African realities, South Africa, which lives idirect contact with
the African masses, has attempted another esperiment: that of
separate government 'apartheid'. Until now, one must recognise
that the results have been good and have allowed an increase in the
standard of living of the populations, whilst in the former Africa
l Shaw. S. S., "TheTruth About South Afrjca". IS. ~ews and World Report,
19 Nov. 1962.p. 114.
The Star25 NOV. 1964, p.3.
d'Archimbsud, D., "L'Afrique du Suddevan l'opinjon", La Revue I;ran@ise.
No. 139 (Apr.1962),p. 15. SOUTH WEST AFRICA
398
possessions, with one or two exceptions, the standard of living is
declining.
With the postulate tliat the multiracial communities which exist
in the Republic of SouthAfnca are not at the same level of develop-
ment and that each has the right to progress and to dignity, nothing
ismore normal than that each community should progress according
to its ability ... The general prosperity of the country is such that jt
can furnish the means for expansion necessary for an acceleratéd
development, a condition which cannot be fulfiiiedin other African
countries '." (Translation.)
40. Finally, reference should be made to tu70foreign autliorities quoted
by Applicants, viz., Lord Hailey and Professor Gwendolen Carter 3.
As regards Lord Hailey, Respondent has already demonstrated that
the basic premise underlying his views was not even correct as at the
time when he wrote, and that its incorrectness has been established con-
clusively by,subsequent events. Wis criticism that institutions of Local
Government are based on Tribal Councils rather than on electoral bodies
is reminiscent of an attitude aIso expressed at one stage by Professor
Cowen and which Professor Cowen has freely acknowledged. has now
fallen away 6.And whatever justification there might have been in 1956
for Lord Hailey's reference to an "assumption that discrimination is not
merely an act of expediency but a law of nature" it is clear that in the
light of recent pronouncements any basis therefor has fden away.
IfApplicants' comment on Respondent's treatment in the Counter-
Mernorial of a portion of this extract from Lord Hailey's work is intended
to suggest that Respondent has questioned or denied the impartiality of
Lord Hailey's attitude, this would be unfounded. A reading of the rele-
vant passage in the Counter-Mernorial Io renders it abundantly clear that
the contrast between the views expressed by Lord Hailey and those of
other commentators quoted by Kespondent, lay in the contents of the
views, and not in the impartiality or othenvise of their authors.
41. The above comments regarding Lord Hailey are of erlual applica-
tion to Professor Carter. Her basic criticism is that-
". .. the emphasis is mainly on [aj5artheid's] negative aspect, z.e.on
maidaining th Eüropean areas of the Unionulider the exclusive
controt ofwhite South Africans, rather than the positive one of pro-
moting a distinctive life for the Bantu 3".
Respondent disputes that this was a correct statement even when re-
gard ishad tothedate of the publication (1958 f)om which it was taken.
It is easy to be mistaken about a matter of emphasis in circumstances
where the negative aspects receive much more publicity and are generally
La Quotidienne,Paris, july 1964, pp4-5.
IV, pp.278-280.
Ibid.. p280.
II, pp.487-488.
Vide IV,pp.322-323.
VideChap. VI, para.21. supra.
' IV,p. 279.
As to which, vide Chap.V, para.106, supra.
9 IV, p. 279,footnote1.
'OIl,pp. 484-487. REJOISDER OP SOUTH AFRICA 399
more conspicuous than the positive aspects, which may in substance
neverthelessbe of far greater significance or importance. However, be that
as it may, there can be no mistaking that the emphasis at present faUs
heavily on the positive aspects of separate development, thus rendering
Professor Carter's l#de.dnt outdated.
42. For the reasons set out above, it is submitted thatthe "evidence"
adduced by AppIicants regarding views of governments and foreign au-
thorities does not assist them in establishing that there is no room for,
noractual existence of, wide differences of opinion regarding the merits of
Respondent's policies. In particular, it iç s+ignificantthat overseas com-
mentators who give reasoned and responsible consideration to the cir-
cumstances in South Africa, including the possible alternative policies
which could be applied, tend increasingly to favour the policy which
Respondent has formulated on the strength of long acquaintanceship
with and intimate knowledge of realities in Southern Africa. CHAPTER VI11
WEIGHTOF SCIENTIFIC AUTHORITY:
GROUPPREFERENCESAND PREJUDICES
A. General
I. Chapter IV B.3.b.3 of the Reply Iis devoted to an attempt to illus-
trate that the "[o]verwhelming weight of conternporary authority in the
political and social sciences" 2,shows that ". ..Respondent's poiicy and
practice of apartheid fails (sic) to prornote the well-being and social
progress of the inhabitants of the Territory ..." 2.It is an attempt, more
particularly, to show that such "contemporary authority in the political
and social sciences" refutes certain "Contentions" which, according to
Applicants, have been advanced by Bespondent, as being basic to Res-
pondent's policy of separate development. These "Contentions" are
described as follows in the Reply :
(a) "Respondent's Contention Regarding 'Difference' without 'In-
feriority' "3;
(b) "Respondent's Contention of Inevitable 'Frustation' (sic) if al1
Inhabitants of the Territory are Accorded EqualOpportunity" 4;
(c) "Respondent's Contention that as a 'Realistic Government' it
must Support Existing 'Group Reactions' " 5.
Applicants' treatment of the aforementioned thrce "Contentions"
forrns the subject-matter of Chapters IX, X and XI, respectively, below.
This Chapter is devoted to a discussion of certain matters raised in the
introduction to Applicantç' treatment of the said "Contentions".
2. In the said introduction Applicants Say, with reference to certain
passages in the Counter-Mernorial, that-
"Respondent's formulations of its policy of afiartheid, or separate
development, are based, inter alia, upon explicit andimplicit assump-
tions concerning patterns of human behavior, and asserted limits
upon the ability of public authoritieç to influence or affect such
behavior. These assumptions, stated for the most part in the form
of generalizations, appear clearly, for example, in Respondent's
rationde of its policy on Education in the Territory" 6,
and reference is then made to certain paragraphs in the Counter-Memo-
rial dealing with education 7. These "assurnptions", or "underlying pre-
mises" of Respondent's poIicy, as AppIicantç alço cal1them, are said to
be-
"... in effect, that historicai circumstances have created a situation
in which mernbers of different 'groups' @refer to 'associste with
l IV,pp. 302-312.
Ibid.. p277.
"IIbid.pp. 307-308.
Ibid., pp308-312.
Ibid. ,.302.
' Ibid.a,d videfootnote 3 on that page. RBJOISDER OF SOUTH AFRICA 401
members of tlieir own group'; that 'many Europeans, in al1 pro-
bability the vast majority, are not +refiared to serve in positions
where Bantu arc placed in a position of authority over them'; that
these are 'social phenomena which exist as facts, independently of
uny governmental olicy, legislation or administrative practices'; and
that 'whatcver t l?e moral rights or wrongs pertaining to them in
particular situations, there can be no denial that siich group reac-
tions exist as facto sfwhich due cognizance must needsbe taken by
any realistic gouernment' " l;
and it is alleged by Applicants that, on the basis of such "assumptions
and generalizations" Respondent-
.IL
... accordingly concludcs that efforts on itspart to seek parantees
of equality of access of al1individuals to employment, equal educa-
tional opportunities, equal residence rights and the like, would
bring about refusa1 of white perçons to continue to operatc the eco-
nomy, with the result that Respondent would be cornyelled to
reinstate differential opportunities at a later stage and thiç, in turn,
would have the consequence of creating a sense of 'frustation' and
unhappiness arnong 'non-white groups' greater than they feel under
the present systern, under wl-iichthey are 'sheltered' from the un-
attainable2" .
Applicants furthermore referto a few passages in the Counter-hlemoritll
to illustrate what they term Respondent's "theme that it is helpless to
act other than as it presently does, if it wishes to act responsibly" '.
They point out that the Odendaal Commission, in explaining its recom-
rnendations, also expressed the view that-
". ..[A] policy of integration is unrealistic, unçound, and undesirable,
and cannotbut result in continua1 social discrimination, discontent
and frustration, friction and violence-a climate in which no socio-
economic progress can be expected to take place. Under such con-
ditions the social cost in non-economic terms must outweigh any
possible economic advantages. In the circumstances it is therefore
desirable to accept the.position as it isand not topettideaEismbelore
realism 5".
And they conclude with the stateinent that Respondent "seeks also to
justify its poIicy on the basis of comparisons with human behaviour at
al1 times and in al1 places" 5; and that Respondent also contends that
"the most analogous situation for comparative purposes is that of al1
mixed, plural, or multi-racial communities in the world"
3. Applicants make no nttempt to substantiate their aforementioned
allegation that Respondent "seeks also to justify its policy on the basis
of comparisons with humnn behaviour at all tirnes and in al1 places",
but proceed to add that Respondent "suggests that its assumptions hold
for at Ieast a certain category of situations, e.g.. al1African countries" *.
1 IV, pp. 302-303.
2 Ibid., p. 303.
Ibid., pp. 303-304.
4 Ibid..p. 304.
Ibid., p. 305.402 SOUTH WEST AFRICA
Respondent never suggested that its "assumptions" held good for "aii
African countries". In one of the passages in the Counter-Mernorial
referred to by Applicants to substantiate this allegation l, Respondent
stated:
"In addition to South Africa, various other countries or Terri-
tories in Africa and elsewhere will be referred to by way of exarnple,
comparison, or illustration. Respondent wishes to emphasize at the
outset that çuch references are not intended to convey any criticism,
express or irnplied, of any country or territory or its Government.
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 various methods designed to solve thein: In
some instances the purpose is to show contrast between conditions
in South West Africa and other territories, necessitating differences
ol approach in the framing of policies of legislation and adminiç-
tration. And in some respects the references also render possible a.
measure of comparison O£ standards of achievemcnt in comparable
circumstances ..."
It is obvious, in Kespondent's çubmission, that Applicants' allegation
is not borne out by what is said in the passage to which they refer. Nor
is it borne out by their reference to a second specific passage in the Coun-
ter-Xemorial, where it was stated by Respondent that the "position" of
Natives in the mining industry in South West Africa ivas ''~7erymuch the
same asthat found elsewhere in Africa" 2.As wivilalppear from the context
in which the statement was made by Respondent, the intention was to
point out tliat the "position'' of Natives in the mining industry was much
the same as elçewhere in Africa because of the lack of experience of .a-
tives in the said industry. This is not the same asseeking to justify pollcy
on the basis of comparisons with situations elsewhere.
The third reference made by Applicants to the Counter-3Iemorial
in support of their allegation concerns education. It was pointed out by
Respondent on the page referred to by Applicants that its policy regarding
the content and method of Kative education in South West Africa corre-
sponded with vieww shich had becnexpressedinrnanyAfricancountries-
includiiig both Applicant States. It is significant that Applicants have
not referred to any çcientific views to dispute the soundness of the educa-
tional principle involved in the matter dealt with by Respondent in the
paragraph in issue, nor have they themselveç denied the soundness there-
of. In the circumstances the relevance of Applicants' reference to the said
paragraph is not clear.
In support oftheir above-mentioned çtatement that Rcspondent "con-
tends that the most analogous situation for comparative purposeç is that
of al1 inixed, plural, or multi-racial communities in the worlcl" 4,Appli-
cants refer to a paragraph in the Courtter-Memorial in which Respondent
dealt with certain group reactions in South Africa Respondent stated,
inter dia,that such reactions were "social phenomena" which "mani-
' IV, p. 305, faotno4,reference toIIp. 383.This statement by Hespondeiit1viiS
intended to cover the contents of Book IV of the Counter-Mernorial, towhich
Book Applicants alsorefer without specifying any particular paragraph or page.
III, y. 57, referred to IV,p. 3oj.footnote 5.
IV, p. 305,footnote 5,reference to IIIp.3S1.
' Vide para.2.supra. REJOIKDER OF SOUTH AFRICA 403
fest[ed] themselves, to a greater or lesser extent, in mised or plural
communities throughout the worid" l, and that-
"[dlepending upon the exact circumstances of a partipular situation,
the phenornena may partake of the nature of group preferences,
group self-protection, group assertiveness, group conceptions of
diHerenes in social and cultural leve1,-or sometimes simply group
prejudices. Wliatever their exact nature or causes, and whatever
the moral rights or wrongs pertaining to them in particular situa-
tions, there cati be no deniid that such group reactions exist as facts
of which due cognizance must needs be taken by any realistic govern-
ment 2"
Respondent discusses hereafter the phenornenon of group preferences
and certain related aspects, but before ddng so it deals briefly with
Applicants' above-mentioned references to certain passages in the
Counter-Memorial desling with educatioii.
4. Applicants refer to certain passages in the Counter-iklernorial as
containing the "rationale" of Respondent's policy or1 education in the
Territory 4. Respondent points out that the passages iii the Counter-
Memorial 5, whilst relevant tothe question of group reactions, as referred
to in the paragraphs below and again in Chapter X hereafter, and also to
certain aspects of education, cannot properly be said to set out the
"rationale" of Respondent's educational policy in the Territory. Re-
spondent does not propose to deal with the rnatter in ariy detail, and
rnerely points out that the said passages are by no means concerned with
al1the various factors, discussed in the Counter-Mernorial 6,~vhichunder-
lie Respondent's system of separate education in South M'est Africa.
Tivo further passages relating to education whicli are quoted by Appli-
cants hardly seem relevant to the point Applicants seek to make, viz.,
Respondent's alleged "theme that it is helpless to act other than as it
presently does, if it wishes to act responsiblyJJ ?.The first passage deals
with ccorlomic considerations flowing from differing social and economic
Ievels of development in the case of the European and indigenous groups
of the Territory. whilst the second 9deals merely with attitudes found .
amongst the indigenous groups in regard to compulsory educntion-Le.,
not with any inter-group attitudes.
B. Group Preferences and Prejudices
5. In the paragraphs in ~irhichthey describe the "underlying preinises"
of Respondent's policy of separate development, Applicants Say that,
according to Kespondent, "historical circumstances" created the "situa-
tion" referred to in the said paragraph. Resyoriderit no doiibt indicated
111,p. 52s(para. 20 (f)).
Ibid.. pp. 528-529.
l'ide para.2,supra.
IV,p. 302.
Thc refcrcnce is to III, pp. 52s-530. whiare quoted at IV, pp.266-268. Vide
also the quotations on IV, pp. 303-304 footnote3 inthe text on p. 30and atfoot-
note I on p. 304~vhichare likewise concerned u'ithgroup reactions.
111,PP 353fi.
' IV, p.304.
a At footnote 4 in the texin IV, p.304.
At footnote 5 inthe textin ibid., p. 304.4O4 SOUTH WEST AFRICA
that historical circumstances played a part in the pattern of group rela-
tions and reactions referred to by it,but it didnot Say,or suggest, thatthe
situation was wholly the result of historical circurnstances. In .fact,.
Respondent made it clear that it was deaIing not only with a situation
which was the creation of Iiistorical circurnstances l,but also with "social
phenornena" which rnanifested thernselves, "to a greater or lesser extent,
in mixed or plural communitieç throughout the world" 2.
6. The phenomenon of preferential association among men is not a.
mere "assumption", as Applicantssuggest 3, but a generallg accepted and
scientificaliy established fact on the pervasiveness of which many social.
scientistç have commented. The late Professor Fairchild said:
"From tirne immemorial it has been inherent in the very nature
of hurnan group identification that the rnembers of any particular-
group çhould feel more warmly attracted and attached to other.
members of their own group than to outsiders. It is the very essence
of huinan association that persons who live together continrioiisly
in more or less intimate bonds of society should be characterized
by many similarities of thought, feeling, and action, and moreover
that they shou1d regard their own ways as right and good and pre-
ferable to those of strangers. .. 4"
Yrofessor George A. 1-undberg, former President of the Arnerican
Sociological Society, says :
"In every society men react selectively to their fellow men, in the
sense of seeking the association of sorne and avoiding the association
of others. Seleciive association is neceçsarily based on some observ-
able differences between those whose association we seek and those
whose association we avoid . . . s",
and "[tjhe phenomenon of intergroup discrimination is as widespread
and as old as Iiuman society" 6.
Profeçsor A. James Gregor çays in this connection that the phenorne-
non of preferential association-"the preference for one's kind" ?-is "an
elementary social fact" ', and that it is "characteristic of al1 social.
anirnals" 7.
Science establisheç that the basis for such preferential, or selective,
' Videthe second quotation from the Rcply in para. 2,supra, ivhich is part of pürn.
20 (f)at III,p. 528. This sub-para. (/) refers, in terms, to SouthAfrica, because it
forrns part of a paragraph written in reply to an allegation regarding an aspect of'
higher ediication in South Africa. There is therefore no substance in Applicants'
alfegatiori-vide footnote 2 on IV, p. 266-that "[tlhe omission of reference here to,
South West Africn underscores the extent to which Respandent's policies inthe
mandated Territory are essentially projections of its policies in the Repliblic"It
appears from othet paragraphs in the Counter-Memorial that there hasüt ail times
been social separation in the Territory between Europeans and non-Europeans, and
to a certain extent, also tietiireen the non-European groups: vide III, pp. 367-368..
III,p. 528 (~~nrit20 (1)).
' IV, p.302.
' Fairchild. H.. Race and Nationality (r947),p. 4,
Lundberg. G. A.. "Some Neglected Aspects of the 'Minorities' Problem".
Ilfodern Age (195s). Reprint in The MankindQuarterly, Vol. III. Xo. A,(Apr.-Juno
1963).p. 212.
Ibid., p. 227.
(Xpr. 1960-Jan. 1g61),np.h222.ture of Prejudice", The Eugenics Review. 1'01. REJOINDER OF SOUTH AFRlCA 405
association is provided by observed similarities and, conversely, dif-
ferences. Professor Lundberg says in this regard, as appears from the
passage quoted ahove, that-
"ls]elective association iç necessanly based on some observable
differences between those whose asçociation we scek and those whose
association we avoid .. .".
Professor Niceforo has expressed the view that group interaction is
governed by an attraction of similars and a corresponding repuision of
dissimilars l.Professor Gregor says inthisregard:
"There can be little serious doubt thatthe 'sentiment of identity',
what Kiccforo calls the 'invariable law' of 'attraction of similars and
repulsion of dissimilars' is somehow rooted in the nature of man, a
nature which man shares in its most significant features with al1
.
social animals . ..
A group is sustained by mutual attraction .. .
In every cornplcx society men react selectiveIy to their fellows.
Yreferential association isbased upon observable differences 2."
This sense of çirnilarity, or "sentiment of identity", iç often referred
to in social science literature as a '.'shared consciousness of kind'l. This.
"consciousness of kind" constitutes in the words of one of the founders,
of the science of social psychology, Profeçsor William AfacDougall,
"the principal force underlying all human associations" 3. It has its
counterpart in what has been called "a consciousness ofdifference" and,
it has been stated by Professor 1. Il.BIacCrone, who is quoted by Appli-
cants in another connection 5,that the stronger the identification between
the mernbcrs of a group, the stronger'the feeling against "a1ien"groups:
i . "The identification which lies at the basiç of group psychology,
while leading to the development of those attitudes and impulses
without which a genuine group-life would be impossible, at the same
tirne, and iiecessarily, giveç riseto those veiled or overt rnanifesta-
tionç of hostility directed againstothers which constitute the essence
of the psychology of group prejudice. The greater ntid more intense
the çroup feeling, that is, the stronger the identification between
mcmbers of a group, the greater is the strength of the prejudice
against the alien group and against those who are not members of
one's own group. Social psychology may, or may not, have its laurs,
but therc can be little doubt about the existence of that principle of
, group psychologjr according to which the feeling forOIIC'Sown group
and the feeling against some other group tend to wax and wane in
direct proportion to one another 6."
7. Social scientists teach that the differences which give rise to group
preferences and prejudices can lie of many kinds, and that they can.
depending on circumstances, havedifferent conseciucnces. -- ha.s- bee-.
said in this connection that- .
.i.
' According to Gregor, A. J.. "The Dynamics of Prejudice". The lllankind
Quarterly, Vol. III, So2 (I~GZ) p. 80. .
2 Ibid., pp. 80-81.
hlacDougal1, W.. The Croup Mind (1920)~p.5.
Hciebel. EA.. Man in the PvinzitiWorld (rg58)p..I17.
IV, p. 307and videChap. H, para. 6,irafrrr.
MacCrone, 1.D., Race Alfittrdein Soufh Africa (rgj7)p.249.406 SOUTH WEST AFRICA , .
"[tJhe differences which are the basis for selective association are of
indefinitely large,variety, of al1 degrees of visibility and subtlety,
and vastly different in social consequences ... l",
and that-
. "[g]roupantagonismsseem tobeinevitablewkentwo+euplesin contact
with eachother may bedistinguishedby diBere?ztiatilzg chavacteristics,
eitherinborn or cultural,and are actual or $otential cornpetitors . nly
by eliminating the outward evidences of distinction, such as color,
dress, or language, or by removing the competitive factor, may
racial aatagonisms be destroyed 2."
1t has been çajd, also, that-
"[tjhese differences can reside .. .in attitudes, religious opinions,
speech, aesthetic judgements, technical achievements or observable
physical differences. In varying contexts, in difierent areas of com-
petition one or the other or several in combination will be of primary
importance 3",
and that overt physical differences play an important part in preferential
association and group identification because such distinctions are of
"permanent duration and of high social visibility" ', and provide a
"broad and sure base for group identification" 4. Professor Gregor has
said in this connection :
"Ilrhere differencesbetween groups in contact possess high social
visibility (such 'visibility' can involve cuIturaI differences or physical
differences), reIations are sensitive and hostility is the consequence
of seemingly trivial provocation. This is particularly true when
groups singularly .rnarked by anthropometrical distinctions corne
into contact. Cultural differences can, in a relatively short period, be
ameliorated. Physical differences persist to foster social distance
which characterizes out-group avoidance. Even a superficial con-
sideration of race (understood in its restricted sense) relations,
i.e. contact between black and white, in the United States and
Britain, indicate that the Negro, one in class,language, religion and
general culture with the host people, remains in essentially caste
status, facing overt or covert prejudice in their day to day contacts
with theirwhite conationals 5."
And also:
"ln the United States, where immigrant populations composed
of al1the European sub-races basically akin to the native stock have
been, by and large, absorbed, the Negro and the Asiatic remain in
caste isolation.
This is true in spite of the fact that the Negro isone with the
majority of Americans with respect to language, religion, customs
1Lundberg, G. A.. "Some Neglected Aspects of the 'Minorities' Problem",
Modevn Age (1958)H ~eprint in The Marrkind Quavlerly, Vol. III, No. 4 (Apr.-June
1963), p.212.
Young, D., Amevicam Miîaordiy PeopJes{rg3z),p.586.
Gregor, A. J., "On the Xature of Prejudice", The Eugenics Review, Vol. LI1
(Apr. 1960-Jan. 1961).p. 218.
Ibid., p.219.
Gregor, A. J., "TheBiosocial Nature of Prejudice",Genus, Vol. XVIII. No. 1-4
(1962),PP. 13-14. RE JOINDER OF SOUTH AFRICA 4O7
and general allegiance . . The retention of social distance seems a
function of highsocial visibility l."
Professor Kenneth B. Clark, whoséviews are referred to by Applicants
in another cannection2, points outin this regard that in the United'
States "[d]isadvantaged white groups have a greater chance of increasing
their economic status and being assimilated into the dominant culture"
than Negroes, since "[tlhe bamers against'such assimilation are more
formidable for the Negro child and are further complicated by the fact '
that everyone can seewhat his coloris" 4.
8, Social science studies teach, 'and conternporary events in various
countries of the world confirm 5, that the nature and intensitÿ of graup
attitudes are, in large part, determined by the degree of difference
between groups, the permanence of the respective differences, and the
nature of the contact situation. And, furthermore, that the potential for
intergroup tension and for social disorder materiaUy increases where
differencesbetween groups are emphatic, particularly physical differences
of high social visibility; where group differences have, in the past, given
rise to group conficts; where there are threats of econornjc competition
or ioss of status; and where there are gross differences in demographc
strength so that one group feels itseIf or its traditional values threatened
by another group. Where differences between ethnic groups are of such
extent and permanence that they prevent their assimilation on a volun-
tary basis, attempts at enforcing assimilation may evoke strong and
violent reactions. Thus Professor Gregor says:
"We can generalize (bearing in mind exceptions which can
concei\rably result from singular socio-political circumstances) that
where two peoples, marked by gross physical dissirnilarities make
contgct, the attempt at assimilation is invariably met with tensions
and disharmonies which it is almost beyond the power of men to
resolve 6."
g. As was pointed out above 7,the phenornenon of group preferences is
"as widespread and as old as human society", and it has been remarked
that the prospect of eliminating that disposition in man is remote. Thus
Professor Gregor says :
"Sanguine hopes that the disposition to preferential association
will be elirninated by education, by legislation or by time itself seem
belied by historic experience. Only a sensitive awareness of the
complexity of the problems which face our world in the increasingly
frequent contact of races and cultures can assist us in avoiding the
tragedy that has attended such contacts inthe past
Gregor, A. J.."On The Nature of Prejudice", The Eugenécs Review. Vol. LI1
(Apr. 1960-Jan .9611,p. 220.
IV, p. 307and Chap. X, para.8, infra.
Clark, K. B.,Prejudtce and Your Child (19551, p.50.
+ Ibid. Vide also Chap. XI, paras. 6-7, irrtra.
Vide Chap. III, supra, and alsChap. XI, paras. 6-7, entra.
6 Gregor, A. J., "On The Nature of Prejudice", The Eugenics Review, Vol. LI1
(Apr. 1960-Janr .g6r), p.zrg.
' Vide para. 6, supra.
Gregor, A. J., "On The Nature of Prejudice", l''lEugenics Rcview, Vol. LI1
(Apr. 1960-Jan1 .g6r),p. 222. 408. SOUTH WEST AFRICA'
C. Conclusion. .
IO. It seemç obvious, in the li&t of the aforegoing, that where the
population of a country is composed of heterogeneous groups; the
potentiality for'inter-group tension and conflict can be considerable,
p particularly in a country like South West Africa where there are sub-
stantial differences relating to race (i.e., physical differences), culture,
social institutions, Ianguage and levels of.development between the
various groups. That such differencesmark the various population groups
of the Territory,cannot be questioned, and the problem therefore is how
best to ensure the peaceful deveropment of al1 the various groups and
.their members. In Respondent 'sview existing group differences and atti-
tudes in the Territory are such that any atthpt designed at compelling
groups to surrender their identities, or atforcing them into an unwanted
pattern of integration, -wil generate such tension -and hostility aç to
wreck al1 hope of peaceful development and progress in the future. A
policy which aims at such development and progress should, in Respond-
ent's view, take due note of the differencesbetween the groups and of the
attendant preferences .and -prejudices; give due recognition to the
separate identities ofthe groups; regulate contact between the groups in
such a way as to render each group safe against intrusion or domination
by any ofthe otliers';and seek to obtain as much CO-operationas possible
between the various groups in those fields where contact between them
will not be accompanied by tension, fear or friction. WEIGHTOF SCIENTIFICAUTHORITY:
"DIFFERENCE"WITHOUT"INFERIORITY"
A. Introductory
1. ThisChapter deals with Applicants' treatment of what they des-
cribe as Respondent's "Contention regarding 'Difference'without 'Inferi-
ority' " l.
In the Counter-Memorial Respondent made it clear that its policy of
separate developrnent was "not based on a concept of superiority or
inferiority, but merely on the fact of people being different" and atten-
tion was on more than one occasion drawn to differences between the
various po dation groups of the Territory. Thus-to mention only one
exarnplekespondent referred to differenceî between the White and the
indigenous groups, and to the eflect thereof, in the following terms:
"The vast differencesbetween the White group and the indigenous
groups-differences relating to civilization and culture, levels of
development, standards of l~vingand ways of life, social and political
institutions and habits of thought-militated against any idea of an
integrated society, socially or politically '."
Respondent made itplain, in otlier words, that its policy was baïed on
group differences, and not on any concept of superiority or inferiority.
In the circumstances there is, in Respondent's submiçsion, no justification
for Applicants' describing Respondent 's statement that "[tlhe policy of
separate development içnot based on a concept ofsuperiority, but merely
on the fact of being different" as "ambiguous and meaningless" 4,nor for
their pretended ignorance as to the "intended significance" 5of the said
statement.
2. Applicants allege in the Reply that Kespondent's policy, as charac-
terized by them, ". .. necessarily 'irnplies not only that some 'groups'
are inferior, but that individual members thereof are 'permanently and
irremediably inferior' " $,and they proceed to sav that-
"... the ovenvhehing weight of authority in the sciences of biology,
psychology, sociology and anthropology argue (sic) that no scientific
elidence supports an assumptton that groups or races differ in-
nately 5".
In support of this statement, whatever its real meaning ma- be 6,
Applicants refer to a South African Professor of Anatomy at IV, page 306
and to "additional authorities" in Annex 12 to the Reply ?.
i IV,pp. 305-306 and vide a1soAnnex 12,pp. 500-502.
2 II, p. 471 (para23).
Jbid.,p.422 (para. 7).
4 IV, p.zGg.
3 Ibid.. p. 306.
b Vide para. 5(61, infra.
' IV, pp, 500-502.4x0 SOUTH WEST AFRICA
In the paragraphs which follow, Respondent will first deal with the
aileged necessary implication of inferiority. Then, after briefly stating its
attitude in regard to Applicants' statement concerning modern science,
Respondent will refer to modern scientific views, and also comment
bricfly on some of the views quoted by Applicants.
B. AllegedNecessaryImplication of Inferiority
3. Respundent has stated positively that its policy of separate develop-
ment is "not based on a concept of superiority or inferiority" ',and it
rejects Applicants' allegation that it must, nevertheless, necessarily be
implied that the policy is based on an assumption "not only that some
'groups' are inferioi. but that individual members thereof are 'perman-
ently and irremediatly inferior' "
In an earIier part of the Reply, Applicants rnake the allegation that-
"[tlhe necessary and direct consequence of allotting rights and
burdciis tiy treating 'groups' di8erentL.y is the treatment of at least
some individuals in some 'groups'as inferior 3",
and tliat members of non-~~hse ghupç are allotted " 'permanently and
irremediably inferior' statu, rights and opportunities" '. Respondent
does not intend to deal here with the truth or otherwise of these alle-
gations, but points out that they amount to something different frorn
saying5 that Respondent's policy is based an the concept that some
groups andtheir metnbers areinferior.
Itmay be-although it is not clear thatit iso-that Applicants seek
to draw the inference that Respondent regards some groups and their
members as inferior frorn the mere fact that the various groups are
treated differently 6. Ifso, it is denied that the inference can validly be
drawn. Applicants, it may be pointed out, speak in this regard of the
"fallacious and self-contradictory nature ofRespondent's profession that
the policy of apartheid, or separate development, is 'not based on people
being inferior but being different'" 6This "fallacp", they Say, is "reflected
in Respondent's own inconsistcrit formulations of its policy" ", and the
inconsistency is alleged to exiçt in the following two statements which
appear in the Counter-hlernorial, viz.: "We prefer each of our population
groups to be controlled and governed by thernselves as nations are .. .",
and-
"[wjhere is the evil in.. .the fact that in the transition stage the
guardian must rieeds keep the ward in hand and teach hin znd guide
I~lm and check kiw where necessary? This is separate developmerit 3."
(Italicsadded by Applicants.)
Respondent fails to see what inconsistency there can be said to be in
the two statements. The first States the aim of the policy, whilst the
second deals with the relationship in South Africa between the guardian
(White groiip) and the ward (Native groups) in thetransition stage, i.e.,
I .
l Ir,p. 471(para 23).
* IV, p.306.
Ibid..p. 275.
+ Ibid., p276.
6 Videptheemphasis on "diflerenlly" aIV, p.273 REJOINDER OF SOUTH AFRICA
4 I
while in transition to the stage mentioned in the first statement. It is
clear, furthermore, that there is no suggestion of infenority on the part
ofthe ward in the statements quoted-only the implication ofimniaturity
and as yet insufficient development on its part.
4. It is clear, in Respondent's submission, that Applicants have not
shown why an inference of inferionty shouId be drawn-let alone whyit
must necessarily be drawn. They are, in the circumstances, left with the
mere assertion of such an inference, and with a reference to an argument
by Mr. Philip Mason, in the followingterrns:
".. .as a matter of choice, people may prefer to mix socially lvith
those of their own group, but to say that by law people of one group
must mix with no others can reallp only proceed from a conviction
not only that the other groups arc infenor but that every member of
each of the other groups is permanently and irremediably inferior l".
Mr. Alason's reasoning in the above passage, and the conclusion to
which it leads him, are totally invalid. The basic reason for this is that he
sets out from a premise which is erroneous, at least to the extent of
constituting serious over-simplification. He does not explain from what
source he derives the description of Respondent's policies as "sayling]
that by law people of one group rnust mix with no others". There are, of
course, laws which have the effect of restricting, although hy no means
totally excluding, social contact between persons of various groups.
But such restrictions are mostly of reciprocal application, and they
represent only one facet of policies designed to find a solution for
extremely difficult problems of group relations in the South African
context. Where the ultimate aims of the whole policy, Le., separate self-
realization for each group, are properly imderstood by mernbers of the
groiips concerned, as is happening in an ever-increasing rneasure 2, and
as they come to expenence the emphasis which 1splaced ziponrespect for
their distinctive cultures and for their dignity as human beings, there is
ever less occasion for anyone to regard himself as being treated as
"permanently and irremediably inferior".
That restrictive measures rnay be considered necessary to avoid
complex problems of government, \vithout any suggestion of infenority
on the part of the group concerned, has been recognized in certain
countries which are aware of the difficultieswhich arise in heterogeneous
sitiiations. Thus, as has been noted ',the immigration of non-Europeans
into Australia {whichhas a non-European population of little more than
30,000)is limited, and the purpose of this policy has been officiallystated
to be-
". ..to maintain homogeneity of Australian people in order to avoid
insoluble problems which arise from inability of Europeans and non-
Europeans in any one country to merge successfully into a single
harmonious community. In such an attitude there is not the slightest
suggestion that Europeans are the superior race *".
Respondent further refers in general to factç and comment dealt with
VI.p. 339 and.vide p. 306, footno1.
Vide,e.g.,Chap. VI, paras. 65-84. supra.
Vide Chap. III, pua. r7, supra.
' In an article entitled "Commonwealth Checkon Entry' of Non-Whites",, The
Times (London), dated 18Apr. 1962. '412 ..:. SOUTH WEST AFl<ICA
in Chapter III of this section. which clearly demonstrate the inability of
manp peopies between whom there is a large measure of difference-e.g.,
in colour, culture, standards of development, or the like-to become
assimilated ivith each other, not because of any question of innate
inferiority or superiority, but merely because the differences are too
great. It Carnot validly be suggested that differentiation which isaimed
at avoiding group reactions of the kind mentioned in the sriiclChàpter
and in Chapter VI11 immediately above must nevertheless be con-
sidered to "proceed from a conviction" of superiority or inferiority on the
part of any group orits members.
ln al1 the circumstances Respondent says that the inference.which
Applicants and AIr.Mason seek to draw. is completely unwarranted.
C. Respondent's Attitude in Regard to Applicants' Statement on
Modem Science
5. Apphcants Say that-
"... the overwhelming aeight of authority inthe sciences of biology,
psychology, sociology and an thropology argue [sic] that no scieritfic
evidence supports an assumption that groups or races differ in-
nately '".
As stated before, Respondent's policy of separate development is not
based on the concept of inferiority or superiority on the part of any
group. Whilst the'policy no doubt takes account of the present stages of
development of the respective population groups, it does not rest on any
assumption of innate, or bioIogica1, differences in the potential socio-
cultural ability.of those groups. If it should be a scientific fact-Respond-
ent doeç not Say that it is a fact-that observed differences in the cul-
tural development and achievements of different groups are, wholly or in
substantial part, the consequence of irrernediable biological, or hereditary,
determinants governing cultural development, science would lend
support to a policy which took proper account of such differences and
factors. But, and Respondent stresses the point, whilst the existence of
such determinants could, if established, provide further evidence of the
desirabiLity of a policy of separate development in circurnstanc,es as
existing in Southern Africa, the absence of such biological, or hereditary,
determinants does not in the slightest degree affect the argument for
separate development.
Applicants' 'above-quoted statehent must obviously he qualified so
as to exclude at least some physical differences, since certain physical
characters constitute the very basis on which racial classification 1smade
by scientistsat the present time 2.Thus qualified, Respondent would have
no quarrel with the statement if it is intended to convey-
(i) that scientific evjdence avajlable at present can give no definite
answer to the question whether races difier innately, and
(ii) that it is, for that reason, ,wrong to assume that such differences
exist, just as it would be wrong.to assume that they do not exist.
' IV,p. 306.
Vide, e-g.. the following in "Stateifieqt On The Xature Of Race And Race
Differenkes", by PhysicalAnthropoIogk$s and ~eneticistç, June tg5 I,in Unesco:
The Race Concept (rgg~),p. 12: "In it5 anthropo!ogical sense, the word 'race'
should bereserved for groupsof mankipd possessing.'well-devae ndopremarily
heritable physical diflerences from other groups.,:c ., ... I . REJOINDER OF SOUTH AFRICA 4I3
It is, however, not clear that this is the meaning which Applicarits
intend to convey; for, although it is said, in negative form, that "no
scientific evidence supports an aççumption that groups or races differ
innately", the impression is nevertheless created that Applicants'
contention is that most scientists hold tlie view that present scientific
knowledge esdablishesthe absence of such differences. This impression is
strengthened when regard is had to the positive form in whicii statements
are made by some of the authonties quoted by Applicants. The following
examples will suffice :
"The scientific evidence indicates that the range of mental capa-
cities in al1ethnic groups is much the same l."
". .. If their contributions are distinctive-and there can be little
doubt that they are-the fact is tobe accounted for by geographical,
historical, and sociological circurnstances, not by special apti-
tudes ...
It would seern, therefore, that Applicants' contention is that the
weight of modern scientific authority is to the effect that there are, in
fact, no innate differencesbetween races. If this içindeed their contention
as to the weight of present scientific know,ed-e,it isdisputed,b. Res.Ind-
ent. .
In the paragraphs which foliow Respondent will show that modern
scientists hold opposing views as to the question whether or not there are
innate mental differences between races. Inasmuch as Applicants have
referred to individual views that no such differences exist, Respondent
wili refer only to views that such differences do exist, and, also, to views
that science cannot give a definite answer one way or the other. -
. 6, Cmfltch3zgscientific vims.
(a) In the introduction to the Unesco publication, The Race Concept,
which contains a statement on the nature of race and race dlf-
ferences, as drawn up by a number of physical anthropologists and
geneticists at the request of Unexo.in 1951, and also observations
and comrnents by other scientists on the said statement, it is said:
"The concept of race and the question wh'ether or not there are
mental differences between races are highly controversial matters
on which anthropologists and geneticists hold widely divergent
views, defendingthem more passianately than any other theory 3."
(6) Arthur G. J. Cryns, of the Department of Psychology, University of
Detroit, U.S.A., writes as follows of two opposingschools of thought :
"As to the interpretation of their research data, the students of
racial intelligence ge&rilly'belong to either of the following schools
of thought. One category, taking a predominantly nativistic view,
Conceives the observed Negro-White differences in intelligence test
observance as indicative of an inborn intellectual inferiority of
:<theNegro. Theother, adhering to a more pronounced environmental
- viewpoint, holds that-the inferior test performance of the Negro 1s
largely, .if ,not fully, accounted for by unfavorable environmental
'factors'such as the lack or .#...,uacy of ed,ca.ional opportunjty,
I' . .. .
. ..-, . < . ..
8 z?Ibid:, pp.6br (para. (viii)).-y)). t .+.I .. . .% ,
a Unesco: Th Race Concefit(1951). pp; 10-1 I. .e..L7i-''4I4 SOUTH WEST AFRICA
intellectual stimulation, socio-economic challenges, the absence of
truly 'culture-free' tests, etc. . . . This dichotomy of interpretation,
so clearly crystalized in the American literature on cross-cultural
iiitefligence research,may also be found in the African studies l."
(cl Dr. G. M. Morant, of the University of London. refers to opposing
points of view-on the question in the following terms:
'"The general inference is that there are racial difierence3 in
mentality, although clear demonstration of them-regarding
particular characters and particular pairs of populations-is nvt
available yet. Anyone who enunciates this conclusion is liable to
be misunderstood; discussion of the problem has always tended
to run to extrernes. On the one hand there have been writers who
asserted that there are racial differenceç of profound significance,
and opposed to them have been others who have vehemently
denied the existence of any inborn inequalities between gmups of
people 2."
(d) Professor Dwight J. Ingle, Chairrnan of the Department of Physi-
ology ofthe University of Chicago, says the following :
"Racists have drawn the firm conclusion that the Negro race is
genetically inferior to other races in intelligence, while sorne equali-
tarians have drawn the firm conclusion that al1 races are equally
, endowed with intelligence. Eoth groups support their respective
dogrna by spurious argument, ernotionaliçm, and intolerance, alço
known as bigotry 3."
7. I'ims thnlthereere, or lhatthere+robably(orpossibly) are,difierences.
(a) Professor H. J. YulIer, an internationally known geneticist .who
has been described as "one of - the leading modern biol~gists"~
'says :
". ..in view ofthe admitted existence of some physicali expressed
hereditary differences of a conspicuous nature, between th eaverages
or the rnedians of the races, iwould be strange if there were not also
some hereditary differences affecting the mental characteristics
which develop in a given environment, between these averages
or medians. At the same time, these mental differences might
usually be unimportant in comparison with those between indivi-
duals of the samerace 5."
"To the great majority of geneticists it seems absurd to suppose
that psychological characteristics are subject to entirely different
laws of heredity or development that other biological characteris-
tics5.'J
". .. we do haveevery reason to infer that genetic differences, and
' Cryns, A. G. J., "African Intelligence:A Critical Survey of Cross-Cultural
Intelligence ResearcIhn Africa SouthofTheSahara"j, ournal ofSociaPlsychoEogy,
~0l.57(1962),pp.292-293~ . .
hIorant, G. M.,The S~gnificanceofRacial Diflercnce(1952)p ,.46. Morant is
citeIngle. D. J.. "Comments on the Teachings of Carleton Putnam"Th Mankind
~uartcrly, Vol. IVXo. I (1963). p. 28.
' Vide Dunn. L. C. and Dobzhansky, Th., Hertdit~,:Ray ~~oc~cly (1959). p. 14.
Unesco : he RaceConcept(roi), p.-49., , . . . KEJOINDER OF SOUTH AFRlCA 4I5
even important ones, probably do exist between one living racial
group of men and another . . .'".
... it seems to me that it is eritirely incorrect to say ([thatl-:
'Available scientific knowledge provides no basis for believing that
the groups of mankind differ in their innate capacity for intellcctual
, and emotional development.' For thiç passage \vould imply that
given the same environment, the same degree and type of develop-
ment would be attained by the average (or inedian) of a11races 2."
(b) Dr. C. D. Darlington, Sherardian Professor at the University of
Oxford, England, speakç of the ". ..diverse, theineradicably diverse.
gifts, talents, capacities ..." of each race. He is also recorded as
having said that-
"[djifferent kinds of results have arisen from race crossing in al1
parts of the, world. They çhow reliably and conclusively that the
progeny are different in innate capacity from either parent of the
so-cailed pure race and that these differences are sometimes ad-
vantageous and sometimes disadvantageous, to one or both in the
circumstances abtaining. Simply because the innate capacities
of al1 races of men, as of ariimals, are different, and are suited to
different circumstances andhabitats 4."
(c) Professor A. H. Sturtevant, a geneticist of the California Institute
of Technology, U.S.A., has written:
"There is excelleiit evidence for the existence of individual
differences in mental characteristics . . . There can also be little
question that there are at least çtatistical differences between races
in such genes 5."
And,speaking of race mixture:
"It is true that such crosses give the possibility of producing some
individuals that are 'better' (in any specified respect), than any to be
found in either parental race-but experience and theory are agreed
that, after the firstgeneration, these are much less likely to be found
than are 'inferior' individuals. The result of theçe considerations 1s
that, even on a purely physiological levcl, crosses between quite
different races are not free of danger 6."
{d) Professor Sir RonaId Fisher, a geneticist of the University of
Cambridge, England. believes that-
"[alvailable scientific knowledge provides a firm basis for believing
that the groups of mankind differ in their innate capacity for intel-
lectual and emotional development, seeing that such groups do
differundoubtedly in a very large number of their genes '".
{e) Professor K. F. Saller, of the Anthropological Inçtitute of the
University of Munich, Germany, objected to the aforementioned
statement on race in the foiiowing terms:
. .
l Unesco: Th RaceConcept (1951),p. 50.
3 Ibzd., p.26..
4 Ibid., p.58. ' . . ~. .
lbid.,p.g~. -.
Ibid., p.64. . . 4. . .. .
Ibid.', p. 61. ViL also p."p -'.. '.. ."' . I~ . .41~ SOUTH WEST AFRICA
". . . 1feel that there is a certain danger in the Statement, especially
in so far asthe drafts hitherto evoIved have utterly disregarded or
even flatly denied the existence of mental (psycliic) differences
between certain groilps of peoples. We rnay or rnay not give the
name of race to such groups of human beings, who differ in their
inherited psychic characteristics; but the whole science of cugenics
is based on the existence of such hereditary psychic differences l."
(f) Professor L. S. B. Leakey, aBritish social anthropologist, says:
"As a social anthropologist, 1naturally accept and even stress the
fact that there are major differences, both mental and psychological,
which separate the different races of mankind. Indeed, 1 would be
jnclintcl to süggest that however great rnay be the physicd diffe-
rences between such races as the European and the Negro, the
mental and psychological differences are greater still2."
(g) Dr. David C. Kife, an American geneticist, whilst saying that
"no completely valid tests of intelligence have as yet been devised",
states:
"Even if we discard al1 the results of test cornparison between
different kiths and racial groups as being unreliable, we can be
sure that if intelligence has a genetic baçis, both jndjvidrials and
populations differ with respect to it. Statements to the effect that
individuaI differences in intelligence are largely hereditary and
those between populations are environmental are not only naïve,
but can lead to grave misconceptions on the part of the general
public 3."
Speaking of a passage in the afaresaid Unesco statement on race to
the effect that "with respect to most, if not all, measurable chnrac-
ters, the differenceamong individuals belonging to the same race are
greater than the differences that occur between the observed averages
for two or more races within the same major group" *,Rife says:
"True. but what of it? It may also be stated that the average
differences between individuals belonging to the same race are
usually less than the average differences between people belonging
to digeventraces *."
(h) J. B. S. Haldane, an internationally recognized geneticist, says:
"I am inclined to believe that there are innate statistical differ-
ences in various capacities between different human races .. .6"
(a') ProfessorFritzLenz,a geneticist of theInstitute of Human Heredity,
Goettingen, says:
"Contrary to whit is stated in this paragraph [i.e.of the afore-
mentioned Unesco statement on race] it seems to me that there 'is
1 Unesco: The Race Concept(rg=jr)p.32.
Leakey, L. S. B.,The Progress and BvolutionfMan'in.Afric aIQ~I),p.'15.
Rife, D.C.,Heredi'iy andHuman Nalure(1959)p.. 218. . .
4 Videalso IV,Annex 12,p. 601 (para. (vi)), for a simikir statcmint.
5 Rife,op. cil., p. 248. Vi& alsoGenna"... it is altruethat differenceçbe-
tween racesare usuaiiygreater thaa those whicmay exist between individuals of
the same race": Unesco: The Race Concept (1g51), p62.
6 Waldane. J. B. S., "Comments", Current Anthrqpology (Oct. 1961). pp. 322-323. REJOIKDER OF SOUTH AFRICA 4I7
very strong evidcnce to show tliat genetic differences are a 'major
factor' in producing differences between cultural groups l."
(j) S. Il. Porteus, emeritus Professor of Experimental Psychology
and recipient of the 1963 American Psychological Association
Award in Experimental Psycliology, and Professor A. James
Gregor Say:
"In both ethnic groups and individuals, cultural or nurtural ad-
vantages have considerable influence, but as determining factors
corne far sliort of outweighing tlie natiiral and probably hercditary
differences in mentality *."
(kj Kluckhohn, one of the authoritics cited by -4pplicants 3. believes
that potentialities for certain traits may be present in different
proportions among the various human stocks:
"Mental, temperamental, and character traits are almost im-
possible to isolate in pure form because from the very day of birth
the influence of social tradition modifies the biologjcally inherited
trends. lt is, however, more than possible that the potentialities
for such traitsare present in different proportions among the various
human stocks. The distribution of musical and pther special capa-
cities does not appear to be cqual in al1 peoples. Biological causes
are probably involved; and, even though these account for only a
small fraction of cultural differences,they are stili true causes*."
S. Vims that sciericecannot furnisha definiteanswer.
(a) L. C. Dunn and Th. Dobzhansky Say:
". ..the question of whether or not human races differ in hereditary
psychological traits for the time being must be regarded as
open . ..5".
(b) G.M. Morant says:
"[tlhere are racial differences in physical characters, but whethe~
the situation isthe same or not for mental characters isa question
which cannot be answered dehiiitely at present-mental characters
being more difficult to define and assess, and none hitherto used
being very satisfactory for the purpose of making racial cornpari-
sons 6".
,(c) Michel Leiris çtates:
". .. in the present condition of science it is not possible to Say of
Unesco: The Race Concept (195~)p~. 57.
Porteus, S. D. and Gregor, A. J.. tud d nesIntercultural Tcsting". Per-
.ceptualand hlotorSkiil$, Vol.16, No. 3 (i963), p.722.
3 IV, Annex 12. p. 600 (para. (i)).
* Kluckhohn, C.. .4i'irror For !\fan(r94pp. 124-125. -4 sjmilarview was ex:
pressed by the late Professor AndréDreyfus, a biologist of the University of Sao
Paulo,. Brazil. Certain characteristics, he .said. aa"genetic substratum". He
-referred to "musical talent, which, admittedly, can develop only rtsuitable en-
vironment. but which is quite obviously of genetic origin": vide UnescThe Race
.Goticep(1951) p. zr.Ithas beensaid that"Many çcientiçts believe that there may
be s~echl irinate caoacities which occur inoreAfrea-entlv inone racethanin another
.. .:ibid., pp. 82-83. . \
5 Dunn, L. C. and Dobzhansky. Th.. Hevedity. Race ami Society (rg5g). p. 134.
Theseauthorities are referret6by Applicants &IV, Annex 12.p;GOI a a (vi))..
6 Morant, G. M.,TheSagnifrcanccof Racial Diflcrence(1952) .:.45. -.- . -1qxS SOUTH WEST AFRICB
a particular race that it is more (or less) 'intelligent' than anotlil".
(dj Professor S.E. Luria, of the Department of Bacteriology, University
of Illinois,U.S.A., isrecorded as having said that-
"... 'innate capacities' are not amenable now to measurement at
the level of national groups,particularly because of the preponderant
role of 'cultural heredity' in any Iiuman community 2".
(8) Professor IngIe, referred to above 3, says:
"Are there significant average differencesin the geneticcomponent
of intelligence and otherqualities of intellect of Negroes and Whites?
1 am ofthe opinion that the question is unsettled ... 4"
"It is clenrly established that there is an extensive overlap in the
intelligence of Whites and Negroes. The concept that White and
Negro races are approximately equally endowed with intelligence
rernains a plausible hypothesis for which there is faulty evidence.
The concept that the average Kegro is significantly less intelligent
than the average Imite is also a plausible hypothesis for which
there is faulty but, in my opinion, somewhat stronger evidence 5."
(f) Dr. S.Biesheuvel, Director of the National Institute for Personnel
Research, S.A. Councii for Scientificand Industrial Research, says:
"The only scientifically valid standpoint, which daes not outrun
the knorvnfacts, and which neither prejudices nor prejudges future
findings, we hold to be the following: That observed African abilities
are different from, in some respect superior, in others inferior to
those of Western man; that environmental, more particularly
cultural circurnstances have greatly contributed to bring about these
differences, which are sometimes artifacts of the method of measure-
ment, sornetimes the result of social conditioning; that it is not
known at present from what genetic origins the manifest mental
attributes of Africans have developed, nor whether this development
would have equaiied that of the average European if environmental
circumstances had been comparable; that a new orientation in
research, and the utilization of different experimental and control
techniques will be necessary in order to provide conclusive answers%."
9. Comments on views quoted by Afi$licants.
In the light ofthe above exposition of views held by scientists on the
question of innate differences between races, it is not necessary to deal
with the various views quoted by Applicants. Itwill have been observed
that most of the quotations in the said Annex reflect views which are
directly orindirectlydisputed or queried by other scientists, and, further-
more, that some scientists believe that science isnot in a position to give
a defmite answer to the question inissue. In thecjrcmstances Kespond-
Leiris, M., Race and Cultwve (1951)p16. Referred to in IV, Annex12.p. 6or
(parUnesco: The Race Coxcept (1951)p. 53.
Vide para.6 (d), süpra.
Ingle, D. J.. "Cornments on the Teachings of Carleton Putnam", Mankind
Quarterly, VolIV,No. I (1963), 28.
Ibid.. p29,
* Biesheuvel,S.,"TheStudy af Afncan Ability", Alrican Studies,Vol. II,NO. 2
(June 19521,P. 55- REJOINDER OF SOUTH AFRICA 4I9
cnt merely points to the following in regard to the passages quoted by
Applicants :
(a) The passage quoted by Applicants from a lecture by Professor
Tobias does not deal with the question whether there are innate
differences between races. It is, however, relevant to the view that
some races should not be regarded as supenor, or infenor, to others.
Respondent has already made it clear that its policy of separate
deveiopment is not based on any such concept of supetiority or
inferiority, so that nothing more need reallp be said in regard to
the quotation from Professor Tobias.
Respondent feels constrained, however, to deny Professor Tobias'
allegation that its policy, whilst purportedly based on "cultural
differences", is, in fact, based on the various "assumptions" men-
tioned by him '.It is specifically denied that Kespondent's policy
makes any of the "assumptions" about race which are referred to
in the passage quoted. As to Professor Tobias' reference to the evi-
dence provided by science, Respondent refers to the various views
quoted above.
(6) AIthough perhaps not of any real importance, it is pointed out
that some of Applicants' quotations are hardly relevant to the
question whether science knows of innate differences between races.
The quotation frorn M. Leiris deals ivith the age and alleged origin
of "[rlace prejudice" 3, and not witli an? scientific views on the
question in issue. Equally irrelevant are views as to "prejudices
and myths" which are alleged to be a nienns of finding "a scape-
goat" +, or as tu alleged exploitation, colonization and slavery 5,
and Respondent saj-sthat it is not called upon to reply thereto.
D. Conclusion
IO. It is clear, in liespondent's submission, that it cannot be suggested,
as Applicants appear to do, that there is virt~ial unanimity of opinion
amongst scientists tliat there are no innatc racial differenceç. On the
contrary, it is clear tliat there are serious differences among scientists on
the question; that many scientists believe that tlicre are such differences
and that, inter dia, socio-cultural differcnccs between racial and ethnic
groupç may, at least in part, be the consequence of differences in genetic
potential. Be this as it may. As already stated, Respondent'~ policy of
separate development does not rest on any assumption of such innate
differences, but merely on the existence of de facto differences, however
caused, between peoples, which stand in the way of peaceful assimilation
between them-a distinction which, it is submitted, is amply supported
by what is stated herein before.
1 IV, p. 306.
2 Ibid., Annex 12,p. 601 (para.(x)).
In regard to the alleged age and ongin of race prejudice it may bepointed out
that other authorities on whom Applicants rely differ from LeiriThey say that
"[tlhe idea of biological superiorit~ based on race appears in the Old Testament.
Here if:is quite clear that Jehovah made his covenant with Abraham and 'with his
seed', thatiswith those descended biologically from Abraham. In theNew Testa-
mentthere are vivid descriptions of the conAict betweenthview and the radical.
even revolutionary doctrine ofuniversal brotherhood of man": Dunn. L. C. and
Dobzhansky, Th., Heredify, Race and Society (~gjg)p. 108.
+ IV, Annex 12,p. 600 (para. (iv)).
5 Ibid., p601 (para. (ix))Videalso reference to Lipschutz in footnote 5. CHAPTER X
WEIGHTOF SCLENTIFIC AUTHORITY:
RESPONDENT'S ALLEGEDCONTENTION
OF INEVITABLEFRUSTRATION
A. General
I. In this Chapter Respondent deals with Applicants' treatrnent of
what they describe as "Kespondent's Contention of Inevitable 'Frustat-
ion' (sic) ifAll Inhabitants of the Territory are accorded Equal Oppor-
tunity" '.
In the Counter-Mernorial Respoiident indicated how certain frustra-
tions could arise for Natives in the White economy 2.It was stated, inter
alia, that such frustrations arose from circumstances which existed as
facts, "iiidependently of any governmental policy, legislation or adminis-
trative pra~tices"~, and frorn considerations which rnanifested tliemselves,
"to a greater or lesser extent, in mixed or plural communities through-
out the world" 4.Respondent indicated, also, that it was fully devoted to
the ideal of "eradicating, avoiding or reducing to a minimum al1undesi-
rable aspects and nianifestations of such group reactions, such as unfair
discrimination, domination ofone group by another, and the like" =,and
that it believed that the interests of al1groups could best be served, and
that peaceful CO-existencebetween them could best be seçured, by a
policy which provided for their separate development, "the goal aimed at
being a situation where the Bantu groupç will have self-government and,
eventually, full independence in their homelands, and where econoinic
relations between these homelands and the LVhiteareas will he such as to
amount to a position of economic inter-dependence" b. Respondent
stated, also, that the application of its policy was passing through a
stage of transition which it was sought to complete "with a minimum
of group friction and the negative conseqiiences that could result there-
from" ', the transition being fi:om "White guardianskip and leadership in
every sphere of a partially integrated economy to equality of opportunity
for members of the non-if'hite groups in the form of leadership in largely
separated, though mutually inter-dependent, economies of their own
groups" 7. Respondent stated, furthemore, that in its view there was no
alternative policy which could achieve a just and fair solution in the
Territory
2. ~eç~ondent made it clear, in other words, that whilçt the existence
1IV,pp. 306-307.
III, pp.55-56,65-67and529-531.
Ibid., p. 528 (para20 (j)).
4 Ibid., and vide Chap. VIII; supva.
5 Ibid. p. $29 (para.20 (g)).
6 Ibid., p. 528 (para20 (b)).
Ibid.. p.529 (para.20 (h)).
8Ibid. (para. zo(g)) and videalso II.pp. 472-473 (paras 25-28). REJOINDER OF SOUTH AFRICA 421
of separate groups, ancl of tendencies on their own part towards differen-
tiation inter se, admittcdly liad certain negative consequences of the kind
rnentioned, the overriding consideration was not merely how to avoid
those particular consequences, but how to solve the totality of problems
existing in a multi-group and multi-cultural country to the best advantage
of al1 the groups and al1 their mernbers. And iiithis connection, as has
been çtated before, liespondent is convinced that, whatever the negative
aspectsof its policy of separate development may be aithe present time,
theyare heavily outweighed bythe detrimental consequences which must
inevitably flow fronl any policy which has as its aim the integrrition of
the various population groups of the Territory. Such attempteù integra-
tioii will without doubt evoke serious and violent rcsistance, which cnnnot
fail to have far more disadvantageous rcsults for al1the population groups
and their menibers than are likely to be expericnced by any of theni uiider
the application of Respondent's policy, even in its present stage of cvo-
lution. The goal airned at, as \vas stated in the Counter-Menlorial, is to
eradicate, avoid or reducc to a minimum "al1 undesirable aspects and
manifestations of such groiip reactions" ',and to establish a situation
where the Native groups will have "self-governmeiit and, eventualty, full
independence in their hornelands, and where econornic relations between
these ftomelands and the White arcas ivill be suc11as to amount to a po-
sition of economic inter-dependence" l.
It is clear, in Respondent's submission, tlint the achievement of this
goal must, as a mattcr of logic, not only remove, or minimize, frustrations
of the kind referred to in the Counter-Memorjal l, but also frustrations
of the kind mentioned by some of the authorities cited by Applicants
in the RepIy 2, wliich, as Reçyondent will indicate hereafter 3,are con-
sidered by social scientiststo arisc for rnembers of minority groups who
aspire to be assimilated into the dominant group, but are refused admis-
sion to the ranks of that group.
3. In the Reply Applicants reier to passages in the Counter-Nernorial
in wllich Kespondent dealt with certain frustrations experienced by
Natives in the economic field5.They say the following in this regard:
"On the baçis of such ass~~m~tiotkand generalLations, Reçpond-
ent accordingly concludes that efforts on its part to seek guarantees
of equality of access of al1individuals to emplojment, equal educa-
tional opportunities, equal residence rjghts and the Ijke, wodd bring
about refusal of white perçons ta continue to operate the economy,
with the result that Respondent would be compelled to reinstate
differential opportunities at a later stage and this, in turn would
have the consequence of creating a sense of 'frustration' and unhap-
piness aniong 'non-white groups' greater than they feel under the
present system, under which they are '~Iicltered'from the unattain-
1 Vide para. I,supra.
IV, p.307.
3 Vide para. 8, infra.
4 The term "minority" is used in this context not anly in the ordinary quantita-
tive sense, but aLsoin a qualitative seaseapplying to a group-no matter what its
size-which occupies a lower statusor isat a lower level of development, than the
dominant group.
J IV, pp. 303-306. SOUTH WEST AFRICA
able. Such contcntions are repeated tliroughout the Counter-
NemoriaI l."
Itis clear from tlie Rcply that when Applicünts speak of "equality of
access of all indivicliinls to employnient, cqiinl educational opportunities,
equal residence riglits and the like", they rcfer to a situation where no
distinctions atal1are to be made between the various population groups,
and where the samc treatnient must be afforclecl to al1 individuals in
the Territory. This being so, their allegation that an absence of difieren-
tiation in al1fields will bring about, in Kespondent's view, a "refusal of
white persons to continue to operate the economy", is clearly far too
narrow a statement of ltespondent's views as to wliat the results will be
of a policy which does not differentiate between the various population
groups. Without going into any detail, and to mention onlytwo examples,
Respondent points out that Applicants make no rcference to what are,
in Kespondent's view, the predictable conseclueilces oi a policy of non-
differentiation in tlie politica= and educational fields 3.
Furthermore, tlie description, in the above-quoted passage, of the
manner in which a "seiise of 'frustration' and i~nhüppiness among 'non-
wliite groups' greater than they feel under the present system" will
allegedly arise, is Applicants' own, and is not derived from anything
said in the Counter-Xlemorial. Respondent did noi deal with the situation
which might arise if it shoiild first do away witli differentiation between
the groups and shoiild then seek, ai a later stage, to re-introduce it:
siich a hypothesis was not raised at al1 in tlie Counter-Mernorial. IiThat
Respondent dealt with was,more particularl~, the frustration that could
arise, jndependently of any government policy or lcgislation, for a
Native who qualifies for a profession, or other form of higher occupation,
in which he will have to conipete with Europcans in the White society-
especiaIIy if his livelihood should depend on Eiiropean patronage, or on
the services of European employees, or on t~cingenlployed in a position
of authority over Europeans l. And it was in relation to thiç problem,
inter alia, that Respondent indicated that, iii itç view, the solution was
to be souçht on the basis of separate development 4.
4. Applicants also say in the Reply that thc-
". ..basic fallacy of liespondent's contention, captioiied above [viz.,
'Kespondent's Contention of Inevitable "Frustation" (sic) if Al1
Inhabitants of the Territory are accorded Equal Opportunity'], con-
çists, in the scientifically demonstrable fact ttiat the greatest 'frus-
stration' is causeci by denial of equal opportunity inherent in the
policy of apartheid itself 5".
It will be evident from th5 Counter-Mernorial, and more particularly
from the passages referred to by Applicants themselves 6,that Respon-
dent did not advance any contention in the form in which it is framedby
Applicants. Kespondent admitted that there were certain potential
frustrations for Natives in the econornic field, as set out above ', but it
' IV,p. 303,
11,PP 472-473.
III,p.382.
Vide III. pp. 527-531especially p. 528 (parzo (8)) and p.529 (para. 20 (h)).
IV,p. 306.
Ibid., pp. 303-307.
Vide paras. Iand 3,supra. REJOINDER OF SOUTH AFRICA 423
çubmitted, at the same tirne, that its policy of separate developrnent
airned at removing, or minirnizing, such unsatisfactory aspects as there
were at prcsent by creating self-governmg and, ultirnately, independent
hoinelands for the various population groups. Respondent furtlier made
itcfcar that, in its view, a poiicy ofattempted integration of the various
population groiips rvould create much more serious disadvlintages for
al1 the groups and their members, jn al1 spheres of their lives than were
esperienccd at present l.
Applicants' allegation that "the greatest 'frustration' is caused by
denial of equal opportunity inherent in the policy of apartheid itself" is
not developed by Applicants in any way. Al1 they do is to quote five
passages-four froni works of, presurnably, social scientists 2, and one
from the decision in the case of Brozc~zv. Board of Education 3-without
any cornnient or argument. Resyondcnt now deals with these views.
B. Views Quoted byApplicants4
5,As has been pointed out above 5,dpplicants are conccriied with
shbwing thnt "frustration" is caused hy the "denial of equnl opportunity
inherent in tlie policy of apartheid". Applicants have never alleged that
"apartheid" denies opportunities to the Europeans of the Territory, so
that it must be presumed that they refer to "frustration" on the part of
Natives-urhich was also the context in which Respondent dealt with the
question of frustration in the Counter-Alemonal.
6. Applicants do not explicitly indicate the purpose for which they
seek to rcly on the first two quotations, viz.,from Raab and Lipset and
from 1.Il . lacCrone 6. Ttietheme in both cases iç that tlic White child-
in the firstinstance in the Unitiecl States, and iri the second in South
Africa-learns from childhood tolook upoii a black person asan "inferior".
This is in itself a highiy tendentious propositionBut the important aspect
for present purposes is that the charge jsin ncither instance laid at the
door of government policy as such. In the first instance the "pattern of
communjty practices" or thc "social situations" are held to blame. In
the second instance "[the) present economic, political and social struc-
ture" is said to create the tendency. If Applicants' suggestion is that
social attitudes and reactions on a question of this nature ought to be
chütiged by governmental action, Respondent refers to its discussion of
that suhject in the next Chapter '. If the suggestion is thnt the whole
political structure in South Africn and in South West Africa is to be
clianged to one of attempted integratiori, Respondent contcnds that it
has demonstrated overwhelmingly why, in its view, thc consequences
of sucli a step would be disastrous for al1 the peoples for whoni liespon-
dent is responsible, or at least the preponderant number of their members.
1 Vide paras.i and 3, supra.
2 IV,p. 277 (para. b.3).
3 Brown v. Boavd ofEdtitaiionofTopeka,347 U.S. 483,inUnited Statessupreme
Court Reports.Lawyers' EditionB ,ook g8 (rg54), pp. 880ff.Vide?IV,p. 307,
footnot5e.
* IV,pp. 306-307.
9 Para.4, supra.
IV,p. 307.
' Vide Chap. XI, infra.424 SOUTH WEST AFKlCA
7. The third passage cited by Applicants is from a book by Professor
Robert NacZver, of Columbia University. It readç as follows:
"Under al1conditions the discrimination of group against group is
detrimental to the well-being of the cotnmunity. l'hose who are dis-
criminated against are balked in their social impulses, are prevented
from developing their capacities, hecome warped or frustrated,
secretly or opcnly nurse a spirit of animosity against the dominant
group l."
Respondent has never been in frivour of a situation where there is
"discrimination of group against group". On the contrary, as has been
shown in the Counter-Mernorial" ltcspondent's policy aims at the
establishment of a situation where there will be no such discrimination.
The question iç, however, how group discriminations can best be removed,
or minimized. In Respondent's submission tlie solution rnirçt depend on
the circumstances which prevail in a given territory. Professor Xaclver
speaks in this regard of the "well-being of thecommunity" (italics added),
thereby apparently contemplating a case where groups in fact form one
nider cornmunit y, nrherethe polic~.is to treat them as such. He indeed
advocates the development of a "sense of community" 3,in the reassertion
of the "comrnon values of the ernbracing culture" ',and in the establish-
ment of a "multi-group society" 3.\jrhether such a solution coiild have
reasonable prospects of success, must clearly depend on al1 relevant
circumstances in the territory concerned. As far as South West Africa is
concerned, Respondent is convinced that the remedy does not lie in an
attempt to create one, single, multi-group society.
8. The next passage relied oii by Applicants is [rom a book by Profes-
sor Kenneth B. Clark. of the United States, and it reads as follows:
". . .the evidence from social-science rescrircli, from general obser-
vations, from clinical material, and from theoretical analyses con-
sistently indicates that the personality pattern of minority-group
individuals is influenced by the fact of their minority status 4".
It may be accepted that the "personality pattern of minority-group
individuals is infiuenced by the fact of their minority status". The passage
refers to the position of Negroes, and, more particularly, of Negro
children, in the United States. Professor Clark indicates that Negro
children in the United States realize from a tender age that they belong
to a minority group which has a lower social and economic status than
the \!'hite dominant group, and he statcs that the Kegro group is "sub-
ject to a more general condition of social isolation, rejection and fms-
tration" 5 than other minority groups in America. The result is that
Kegroes, and Negro children, develop feelings of inferiority, or even psy-
chological disorders of a serious nature. Professor Clark says in that
regard :
"As the Negro observes the society in which he lives, he aççociates
whiteness with superior advantage, achievement, progress and power,
1MacIver, R. M., The Web of Govevnmenl (1g47),p.428.
*11,pp. 466-475-
'MacIver, op. cid.p.429.
4IV, p.307, The passage quoted is from ClarkK. B., Pvejudiccand YourChild
('955)P. 47,
Clark, op.cit.p.52. REJOINDER OF SOUTH AFRICA 425
al1of which are essential to successful competition in the Arnerican
culture. The degree of whiteness that the individual Negro prefers
rnay be considered an indication of the intensity of his anxietp and
of his need to compensate for what he considers the deficiencies of
his own skin color l."
The result, according to Professor Clark, is that Negroes tend to reject
themselves 2,and to deny their "skin color and racial ancestry" l.
Professor Clark points out that such self-rejcction, or self-hatred, has
its source in the faiIure of menibers of a minority group to be ass~milated
into the ranks of the dominant group. He says that such "self-hatred is
not restricted to Negroes" ?,but that-
"[dlisadvantaged white groups have a greater chance of increasing
their economic status and being assimilated into the dominant
culture 2".
In the case of the Negroes, he says,
"... the barriers against such assimilation are more formidable for
the Negro child and are further compIicated by the fact that every-
one cansee what his color is '".
The basic problem is, therefore, the Negro's inability to be success-
fully assimilated into the ranks of the dominant White group. There is
in their case, says Professor Clark, a "continuous cold war for status" 3.
Professor Clark stateç that he made certain tests to detennine the
"development of racial awareness and racial preferences in Negro
children" '. His findings seemed to iridicate that northem Negro chil-
dren suffered "more personality damage from racial prejudice and dis-
' crimination than southern Negro children" who attended segregated
schools. Professor Clark argues, however, that the "apparent emotional
stability of the southern Negro child rnay be indicative only of the fact
that through rigid racial segregation and isolation he has accepted as nor-
mal the fact of his inferior social status" 'jIt may be pointed out in this
.regard, however, that certain other social scientists do not accept Profes-
sor Clark's argument in regard to his findings. Thuç Professor Gregor holds
.the view that Negro children who attend Negro schoo~sdevelop a more
positive conception of themselves than do Wegro children who attend
biracial schools where they are often rejected by White children. In re-
gard to psychological impairments suffered by Negro school children, he
.saus, inter alia:
"In considering whatever evidence is available, the first appeal
can be made to evidence that minority childrenof high social visibil-
ity enjoy positive advantages at critical periods of personality for-
mation in a racially insulated environment. K. B. Clark's studies
of Negro pre-schooI children indicate that in projective tests Negro
children in segregated schools tended to prefer their own race, i.e.,
80% of southern Xegro children showed a preference for brown skin
lClark, op. ci,..49.
Ibid., p50.
Ibid., p55.
* Ibid., p19.
' Ibid., pp44-45.
* Ibid., p. 45.426 SOUTH WEST AFRICA
color, while northern Negro children in integrated situations showed
a marked preference for white skin color, i.e.,only 20% of the north-
ern Negro children indicated brown as their skin preference. Eleven
and twelve ÿear old Negro children attending a non-segregated
school were more likely to prefer light skin color thaii children of
the same age attending an all-Negro school l."
Professor Clark's explanation of his findings, as quoted above, has
also been rejected by C.P. Armstrong, S. S.Crutchfield, W. E. Hoy and
R. E. Kuttner. They Say in regard to the tests performed by Professor
Clark :
"Professor Clark thus dernonstrated tl&t the segregated studentç
were less confuçed, had better self-images, and manifested a smaller
amount of self-hatred. These are precisely the items which Clark
felt were indicators of segregation damage 2."
They caii his explanation a "manipuIation", and Say that-
"[Nith this manipulation, Clark bestows on the Negro child (as
young as three years) the ability to identify the coIor 'brown' with
position on the socio-economic scale 2".
It appears from the aforegoing that the frustrations suffered by the
Negro in the United States is, to a very large extent,the result of the fact
that he cannot successfully be assimilated into theranks of the dominant
*group,and that hisphysical appearance, viz., the colour of his skin, plays
an important part in this failure. It appears, furthermore, that there is
evidencewhich suggests that Negro children who attend all-Negro schools
show more emotional stability and have greater self-esteem than Negro
children who attend school in integrated situations where they do not
enjoy full acceptance by members of the dominant group. All this tends
to support Respondent's view that major frustration and personality
impairment occur precisely in circurnstances of attempted but unaccom-
plished integration with a more developed group, and that the root cause
thereof disappears ivhen the aim is set not at such integration, but at
advancement of the leçs developed group in its own right, on the basis
of respect for its distinctive identity and al1positive values attached
thereto.
9. Applicants' final quotation is from the judgrnent in the case of
Brown v. Board of Education.It reads as follows:
"To separate [children in grade and high schools] from others of
similar age and qualifications solely because of their race generates
a feeling of inferiority as to their status in the cornmunity that may
affect their hearts and minds in a way unIikely ever to be undone 3."
It is somewhat strange, in Respondent's subrnission, to have the Court's
decision presented as that of a "scientific authority" +,particularly when
no indication is given of the nature of the scientific evidence on which
the Court reiied, or of similar evidence (if any) which was also put before
the Court, but rejected by it.
lGregor, A. J., "The Law, SocialScience, and Schooi Segregation:An Assess-
ment",Weslevn Reserve Law Review, Vol. 14,No. 4 (1963),p.627.
Legd Testimony and Scientific Evidence: A Contrast, The Marikind Quavterly, ,
Vol.IV, No. 2 (19631p,. 108.
IV, p.307.
Ibid., p302. REJOIYDER OF SOUTH AFRICA 427
Respondent dealswith the case of Bvown v. BoardofEdacalion in some
detail in the section of the Hejoinder dealing with education and refers
the honourable Court to whnt is stated there. At this stage Respondent
points to tlie following:
(a) The Court's decisian must obviously be viewed in the context in
which itwas given, viz.,that of present-day American society in
which Negroes are, on the whole, one with their White feltow
citizens in mattcrs of language and culture, and where racial origin
is the only significünt difference between them2. The Court had
regard to the question of segregatian on grounds of race only, and
not also to other factoi-s-sucli as Ianguage or culture-as possibly
being of significance in the matter of segregation. It does not follow,
therefore, that the Court's decision will be valid in situations where
different circurnstances apply, e.g., in a heterogeneous country like
South Africa or South West Africa where there are population
groups which are desirous of maintaining their separate identities,
and where the aim is to develop self-respecting cornmunities of
which the mernbers will be free from such tensioiis as arise when
individuals seek admission to an out-group, only to have their
attempt rejected. - -
It wouId appear that social scientists in the United States have
seriously questionecl the evidence which was put before the Court
by the successful Appellants, and on which the Court probably
relied. So, e.g., it has been said that the evidence of Professor
Clark, who isreferred to above 3,rnisled the Court 4,and that the
evidence on which the Court presurnably relied was inconclusive 5.
Indeed, it has been argued that whilst scientific knowledge on the
subject in issue is incomplete, "whatever evidence isavailable tends
to support racial separation in the schools at least throughout
childhood and adolescence" 6.
It is, naturally, not Respondent's concern to take sides in this dispute
regarding the specific situation in the United States, but merely to point
out that it does exist, even although circumstances in that country would
from the outside appear to be so much more favourable for integration
than in Southern Africa. 'I'hismatter is further dealt with in the foUowing
Chapter 7.
C. Other Views
ro. Various social scientists in the United States have referred to the
fact that Negroes suffer personality impairments when they cannot
successfully identify themselves with their own group, and are also not
l Vide sec. G, Chap. III, parg, infra.
2 VideChap. VIII. para. 7.supra.
3 Vide para.8, supra.
van den Haag,E., "Social Science Testimony in the Desegregation Cases-A
Reply to ProfessorClark" .iZIanovaLaw Review. Vol. 6 (1960). p69.
J Rossand van den Haag,"The Fabric ofSociety" (1957).asquoted by Gregor,
A. J., "The Law, Social Science, and School5egregatioAn Assessrnent", Wesfevn
Reserve Law Review, Vol.14.No. 4 (1963), p. 625.
6 Gregor, A. J.,"The Law, Social Science, and School Segregation: An Assess-
ment", Western Reserve Law Review, Vol.14.No. q (1963). p.626.
' Vide Chap. XI, infvu.428 SOUTH WEST AFRIC-4
capable of being successfully assimilated into the ranks of the out-group
they wish to enter. Reference lias already been made to Professor Clark's
views in this regard '.It has been shown, inter alia,that the Negro's un-
attainable wish to be White becomes the source of serious inner conflict.
Professor Gunnar Myrdal saidof this conflict that it produced "a person-
ality probIem for practically every single Negro. And few Negroes ac-
complish an entirely successful adjustment" 2.Professor Gregor argues
in this connection that an individual cannot attain acolierent and viable
self-concept, which is necessary for healthy personality development,
without a sense of group-belonging, and that an individual who identifies
himself with a group which commands his respect and allegiance is able
to attain psychological maturity with far less hazard than one who lacks
such a sense of group identity. He saps: "The development of a coherent
self-system is a function of group identity" 3, and also refers to the fol-
lowing view expressed by Hill:
"Hill's studies of Negroes educated and raised in an all-Negro
commuiiity indicate that such aNegro tends to have a 'much higher
regard for Negroes'; he tends to have a 'higher opinion of Negroes',
and is 'more favorable in [his] expression toward [his] race' +."
D. Conclusion
II. Respondent points out in conclusion that various leaders of -4frican
thought have in recent years expressed themselves about the detrimental
and demoralizing effect which an unsuccessful attempt at adopting White
ways and notions-including colour notions-has on Africans, and that
they have emphasized that a healthy groupsentiment serves to establish
self-respect and a sound self-image on the part of the individual. Professor
W. E. Abraham, Associate Professor of Philosophy aithe University of
Ghana, comrnents on the "tension" and "near-neurosis" affecting the
African who has rnanaged to achieve only a superficial imitation of
European culture, and whom Professor Abraham calls a "truly displaced
man". He \mites :
"The man of two worlds, the man who has been exposed in no
consistent or radical fashion to a milieu which is different from that
to which he belongs, though the latter continues to surround him,
is atruly displaced man. His mastery of the newculture isnot compre-
hensive enough, it is selfconscious, and, such as it is, it is generally
in conflict with mores into which he was born, and which he has
never truly uprooted from his system. His is cultural ambiguity, not
cultural ambivalence, for it is characteristically accompanied by
misgivings. These misgivings, this tension, this near-neurosis, can be
most tragic. Theman of two worlds, uncomfortably striding both, is
the real displaced man
Vide para.8, SUQI~.
Myrdal, G., An American Dilemme: The Negro Problem and Modern De-
mocracy ,(1944) p. 699.
Gregor, A. J., "The D~narnicç of Prejudice", Mankind Quarferly, Vol. III,
No. 2 (0ct.jDec.1962),p. 82.Vide also thview expressed by Hill,para.IO,supra.
Vide Gregor, A. J., "TheLaw,Socia lcienca end School Segregation:An
Assessrnent", Western Reserve Law Review, Vol.14, No. 4 (1963).pp. 627-628.
Abraham, W. E., The Mind of Africa (1962p..IOO. REJOINDER OF SOUTH AFRICA 429
Conscious attempts arc being made in these new African States to
i~npresson the people that theydiffer from the peoples ofother continents,
and the realization of such differences is stressed as being, and is seen as,
something of value for African self-respect. Alionne Diop, Secretary
General of the SaciLie' Africaine de Cultarve and Director and Editor of
the journal PrissenceAfricaine, lias statedin tkisregard that the"African
personality" would corne into its own-
"... to the degree that the African writers andartistsand the African
people themselves become aware of what characterizes them in the
present world and become aware at the same time of their ancient
patrimony and the possibilitiesof their future-to the degree that
thev affirm themselves different and origi-al . . . '".
One of the factors which is emphasized as being something unique,
almost as a standard around which ail can be united, is the African's
distinctive colour. Professor Biesheuvel has written in this regard :
"An interesting development in the growth of cultural self-
consciousness is the popularity which the concept of an African
personality has recently attained in many parts of Africa .t more
than one conference of black African states, the importance of
vindicating the wortli of Africans by establishing the uniqueness and
value of thejr own personality has been stressed. . .
There was a time when the suggestion of any difference was
vehemently repudiated. for fear that it would lead to discrimination,
especially in the educational and social fields.. .
It is a sign of maturity and increased self-confidence that the
posçibility of difference is not only conceded, but that itis seen as
sornething of positive value for African self-respect ?'"
12. Such views clearly indicate, in Respondent's submission, that the
members of self-respecting African communities, such as are envisaged
in Keçpondent's policy of separate development, have every chance of
being free of the personality tensions which seem to mark-as %vas
indicated above-the Negro's unsuccessful attempt at assimilation into
a White dominant community.
l hmerican Society of African Culture, Pan-Afvicunism Reconsidercd (1962),
P. 344.
Biesheuvel,S.,"Race, Culture andPersonality"South African InstituofRa#
Relations (1959).p.4-5. CHAPTERXI
WEIGEIT OF SCIENTIFIC AUTHORITY:
GOVERNMENT POLK Y AND GROUPREACTIONS
A. Introduction
r. The third respect in which Applicants set out to establish that
Respondent's policies, or premises underlying them, are "contrary to .. .
the ovenvhelming weight of authority in the political and social
sciences" l, is dealt withby them under the heading "Respo~rdent'sCola-
tmationlhal as a 'Realistic Government' it mîrsi seceportextsting 'GYOU$
Reactions' " 2.Their argument in this regard may be briefly summarized
as foliows:
(1) Respondent's policyloses sight of the fact that attitudes of prejudice,
discrimination and fear can be modified, particularly through
governmentalaction 3.
(2) Authorities agree that the enforcement of legislation can be a decisive
means of overcoming discriminatory behaviour and reducing con-
Aicts betweeii groups +,arid that "Iegislation is educative"5.
(3) Modern sociaI science rejects Respondent's "assumption" that
attempts to anticipate or modify public opinion are "unrealistic"
or even dangerous '.
(4) By "refusing to act against racial discrimination", and thus reducing
discriminatory behaviour and the attitudes ofprejudice lying behind
it,Respondent "has encouraged and abetted" racial discrimination 5,
and has thus "hindered the well-being and thwarted the social
progress of the inhabitants ofthe Territory" 6.
2.-hloçt of the authorities quoted by ~~~licants in the course of this
part of their argument are American authors whose views and comments
are based on the racial situation which cuists in the United States of
Arnerica. Respondent did not in itç Counter-Memorial deal with the
racial situation existing in the United States, nor with the attempts of
the Government of that country to solve its own racial problerns;
Respondent refrained frorn doing so, inter alia, because in its view the
factual situation in the United States with regard to the composition of
the different racial groups there differs very materially from the situation
existing in South West Africa. However, by reason of the form of Appli-
cants' argument. Respondent is naw compelled to refer to the racial
problems of the United States in three respects, as evplained in the nest
paragraph.
3. In the first place, Applicants' argument assumes that the views
expressed by the authorities on whom they rely, and who are dealing
'Ib~d.,PP.307-312.
3Ibid.,p.308.
+Ibid., p309.
5Ibid., p. 311,
Ibid., p.312. REJOINDER OF SOUTH AFRICA 43f
with the situation in the United States, apply automatically and with
cquaI force to the situation in South West Africa, as if the situation in the
two countries were the same. It is necessary for Respondent to demon-
strate to the Court that Applicants' assumption is incorrect, that the
racial problems facing the Government of the United States are greatly
different from the problems with which Kespondent has been and is
confronted in Soutli West Africa l,and that accordingly the views of the
authorities relied upon by Applicants cannot be regarded as being in any
way authoritative with regard to the prcsent case 2.
Secondly, Applicants' argument suggests by implication that in the
United States the enforcement of anti-discrimination legiçlation has had
only beneficial and no detrimental results. It is necessary for Respondent
in this respect to show that that is iii fact not so, that the measure of
success achieved by the Federal Government's policy of enforcing de-
segregation in the United States has been limited 3,and that there have
on the other hand been higlily detrimental effects which must be brought
into account in evaluating that policy '. .
Thirdly, Applicants' argument creates the impression that al1authori-
tics. or at least the overwhelming weight of authority, support the views
advanced by Applicants. Respondent will show that the impression
conveyed bp Applicants is a false one. Some of tlie state~nents quoted by
Applicants require clualification bp virtue of what the cluoted authors
thernselves have said in other parts of their works 5. More importantly,
there is a substantial body of opinion ~vhichis opposed to the vjews
quoted by Applicants, particularly witli reference to the situation in the
United Stateç 6.
4. Uefore proceeding to deal with the matters referrcd to in the pre-
ceding paragraph, Respondent states emphatically that it does not wiçh
to, nor does it in fact,criticize the Governinent of the United States for
the rnanner in which it has attemyted to solve the racial problems existing
in that county-problems which are peculiar to that country and on
tvhich Kespondent would prefer not to pass any comment. Kespondent
must in particular not be understood as advancing any submissions on
the question whether the policy of enforced desegregation which is
applied in the United States, is or is not the best' policy to be adopted
in the circumstances existing in that country, either as regards its general
approach or as regards specific aspects thereof. The problems that exist
in that regard are, of course, not matterç for adjudication in these pro-
cecdiizgs.But what is relevant in the present case is the impression sought
to bcçreated by Applicants that governmental action directed atelimina-
ting racial discrimination has everything to recommend it and nothing
against it, an irnprcssion which purports to be based mainly on the views
of authorities dealing with the situation in the United States. It is this
impression which Rcspondent is constrained to refute, and it is solely
with the object of doing so that Respondent gives sorne consideration
to the sitiiatjon in theUnited States.
1 As indeed. in the Rcpublic of South Africaitself.
. 2 l'ide paras5-10,infra.
3 Vide paras. 12-22,iazfrrz.
Vide paras. 23-32,infra.
3 Vide para. 34,infra.
Vide paras. 36-46. infra.432 SOUTH WEST AFRICX
B. TheComposition and Natureof PopulationGroupsin the United States
5. The largest minority group in the United States are the Negroes l:
they constitute over 95 percent. of the non-White residents of the United
States 2. In 1961 the UnitedStates Commission on Civil Rights reported
that-
"Mexican-Americans, Puerto Ricans, Indians, andother minoritieç
to some extent stillsuffer inequalities and deprivation. But Negroes
areour largest minority group, and their rights are denied more often
in more respects and in more places than are those of any other
group +."
Yet Negroes constitute only about 10.5 per cent. of the total United
States populations; in other words, Whites outnumber Negroes by
roughly g toI 6.
6. In the United States, the Negro minority group has been living
in that country for centuries; they profess the same religious beliefs,
speak the samc language and have the same values as the majority
group; and they share moral and cultural mores with the White com-
munity. It would seem, therefore, that as far as the Negro minority is
concerned, the racial problem in the United States may be truthfully
described as being pre-eminently a problem of colour. Thus, the United
States Commission on Civil Rights refers to the position of the Negro in
Arnerican society as follows:
"Like earlier immigrants from overseas, many of today's largely
nativeborn minorities have been forced into urban slums,restricted
to the poorest schools, and employed in the lowest paid occu-
pations. . . As with earlier groups, these deprivations have led to
discrimination, which in turn reinforces the deprivations.
While many of these problems are sirnilar to those of other
minorities, there are important differences. The Negro is no stranger
to this country: he is an American by birth and by long ancestry.
But heis set apart by Ihecolorofhis skis ...'" (Italics added.)
Professor E. F. Frazier has said :
"Although the folk Negro has become transformed through
education and greater participation in American culture, thefact of
l1961U.S.C.C.R. BR.,k 5,p. 135: "The 1960 census reported on five racial
minorities. Inorder of population size, they were as follows: Negroes, 18,67;,831
American Indians. 523,591 ;Japanese, 464,332; Chinese, 237,292; and Filipinos,
i7G,310."
United States Department of Labor, The Economic Situationof hiegvoes in th8
United States (Revise1962),p. i.
'1961U.S.C.C.R. BR.oks1-5.
Ibid., BookI,p. 2.
' 18,871,83o 1ut of 179,323,175: ibid.1)21 and United States Department of
Labor. The Economic Situation of Negroes in the United States (Revised 1962).
p.I. The figures are taken from the 1960U.S. Census.
6 The 1960 Census figures are: Whites, 88.6 per cent.; Negroe10.5 per cent.;
"Other", 0.9per cent. United Nations Demographic Yearbook 1963,Speciul Topic:
PopüialionCensws Stntistics II, FifteentIssue(19641,p. 313.
1961 U.S.C.C.R.R.,Book 1,pp. 8-9. REJOINDER OF SOUTH AFRlCA 433
triscolor has cantinued to retard his integration into American
life.. l" (Italicsadded.)
7. The fact that it is the colour of hisskin ,nd not any dissimilarity
in cultural, religious or social .background, which is the basic feature
differentiating the Negro from the White majonty group, is pointedly
illustrated by the way in which the Civil Rights Commission in its 1961
report dealt with anotlier minority group in the United States, viz.,
the Arnerican Indians. The Commission devoted a separate section of its
report to a survey of denial of civil rjghts sufIered by the American
1ndians =,saying :
"If American Indians arc a minority, they are a minority with
a difference. Of course Indians face problems comrnon to al1 mino-
nties-jobs, homes and public places are not as accessible to them
as to others. Poverty and deprivation are common. Social accep-
tance is not the rule ... k'etto think of the Indian prohleni solelyin
lerms of bias,discrimination, orcivil rights would be a mistake. For
rtntike most minmilies, Indians were and still are to some estent a
peopk unto themselves, with a cultztre,land, government,and habits of
life al1theirown3." (Italicsadded.)
It is sigiiificant that the distinguishing characteristicsof the Indian
group have been recognized by the Federal Government in the field of
its education policy. M1ithregard to Negroes, Federal Government policy
lias been directed at complete integration of Negroes with Whites 4.
With regard to Indians, however, the position if different. Thc Civil
Rights Commission found that prior to 1934 the federal policy in educa-
tion was committed to the acculturation of the American Indian, a
policy that was "not entirely successful" 5. Changes in policy were made
in 1934 ,he effect of which is sumrnarized as followsin the Commission's
1961 report:
"The cohesiveness of tribal life was now recognized to be an
important elenlent in a child's education. At the same tirne, the
backwardness of some tribes was at least recognized as a liability to
be reckoned with. Education, therefore, \vasto bedïrectly pointed to
the needs of Indians-to help them gain the skills neededto function
in the white man's world without, at the same time, destroyilig their
own. The boarding school gave way tothe day school. Acculturation
as an end in itself was softened. Children were to be schooled within
their home environment by persons who were to be trained in
Indian lore. The use of the native language was no longer forbidden
and the lndian heritage rvas not looked upon as a scourge
The Commission appears to approve of this policy for the federally-
controlled Indian schools, where it is apparently still being applied'.
1 Frazier. E.F.,The ~VegroinIhe Unikd States(1957). p689.
2 196i U.S.C.C.R. BR..k 5. l'art VITI, prrg-160.
3 Ibid.. ppI15-116.
+ Ibid..Book 2 and videpara. 6, in/ra.
Ibid., Hook5.p.140.
1961 U.S.C.C.R.R.,Book 5,p. 141.
Ibid.p,p. 140-144and 157. SOUTH WEST AFRICA
434
C. The Composition andNatureof PopulationGroups in SouthWestAfrica
S. In South \\'est Africa there are at least nine major population
groupç 1.The size, composition and characteristics of each group have
been described in detail in Respondent's Counter-Mernorial { and need
not be repeated here. Suffice it to emphasize, by way of sumniary, the
vast differences between the various groups: they differ inter se in almost
every conceivable physical and socio-cultural characteristic. With
regard to physical appearance, for instance, there are white people,
yellow people, brown people and black people. But the differciitiating
features of the various groops do not begin and end with skin colour.
Indeed, cultural differencesbetween the various groups are probably even
more marked than physical differences. Thus they manifest wide diver-
sities of language, religion, moral standards, social and political con-
ception, technological sophistication,everyday habits, modes of dress and
adornment, and general level of development *. The relative sizes of the
different ethnic groups also Vary considerably. For instance, the largest
single group (the Ovambo) constitutes about 45.5 per cent. of the total
population ;Europeans account for about 14 per cent. and tlieBuslimen
are only slightly more than 2 per cent. of the total populatiori3.
g. In South \Vest Africa the problen~arisingfrortn he existence in the
Territory of a number of different ethnic groups, is not simply a problem
of colour, or even of race. Tliegroups here are set apart from each other
not merely by reason of physical appearances, but more important, by
reason of widelv differing cultural systeins. Each group is, in itself, a
separatc and distinct nation in embryo. Thus, while it would not be in-
apposite to describean American Negro asa black mernbcr of the American
nation, it would he quite unrealistic to regard the Bushrnen, the Herero
and the Whites of South West Africa, for instance, as components of one
nation. Rforeover, some of the groups have been living since before the
advent of Rcspondent's administration in their own areas of the
Territory, geographically separated from one another and fromthe other
inlinbitaiits4.
D. TheSignificanceof the Differencesin the Compositionand Nature of
the Population Groupsin the United States and in South West Africa
ra. The importance of the differences hetwecn the situation in the
United States and the situation inSouth \Vest Africa niust be ohvious.
The circurnstances in the United States are, on their face, particularl>r
favourable for the integration of the Negro people with the White major-
ity of the population. Not only are the Negroes a relativeil small minority,
but they share the socio-cultural values and habits of the substantial
White majority-lvhich iç a relatively opulent and educated group, living
in what is possibly the most industrially advanced and educationally en-
lightened country in the morld. Tt would be hard to imagine a situation
better suited, to al1 outward appearances, for the implernentation of
legislatiori relating to integration.
The situation in South West Africa offcrs strong contrasts in evcry
II, ppgr1 ff.
Ibid.for further details.
Ibid.p,.401.
' 11,p.312. REJQINDEIt OF SOUTH AFRICA 435
material respect. The differences amongst the ylurnlity of groups there
areso numerous andemphatic lthat they must militate heavily against
any natural tendency towards assimilation, and therefore aIso against
prospects of successful attempts at enforcement of assimilation. The
potential for serious social disorder consequent upon such attempts,
seems obvious; and itis materially increased by the fact that there are
gross differences in the demographic strength between groups accustomed
to different standards of life ', so that sonle groups would almost in-
evitably fccl threatened by superior numbers.
It is for the above reasons that circumstances in the United States and
in South West Africa, in regard to the desirability and probable con-
sequences of a governmentally cnforcedprogramme ofnon-discrimination,
are in Reçpondent's subrnission not truly or fairly comparable.
In the following paragraphs liespondent proceeds briefly to examine
the factual situation in the United States in connection with the desegre-
gation policy of the Government of that country. In this regard the facts
and figures supplied by Respondent are derived chiefly from the 1961 and
1963 reports of the United States Commission on Civil Rigl~ts. In thosc
reports the Commission concerned itself principally with the civil rights
problems of Negroes 2; Respondent'ç discussion will be confincd to the
Negroes' position in American Society.
E. Anti-DiscriminationLegislationin the United States
II. Anti-discriminatory legislation has existed in the United States
for alniost a century. The pririciple of non-discrimination on the grounds
of race, colour, religion or national origin has been enshrined in the 14th
and 15th arnendments to the Constitution evcr since 1870 3.The effect of
these amcndrnents is described by the Commission on Civil Kights in the
folowing termç :
"Tlie 15th amendment to the Constitution commands that neither
the Federal Government nor the States may dcny or abridge the
right to vote on account of race or color. More hroadly, the 14th
amendnient forbids any State or its agents to 'deny to any person
the equal protection ofthe laws'. This principle, applicable alsa to the
Eèderal Government, forbids discrimination against any person on
the grounds of race, color, religion, or national origin. It does not
reach the conduct of persons acting in a purely private capacity.
Still, astate rnay not enforce privateagreements todiscriminate.. ."'
Violation of these provisions coild be de& with under certain sections
of the United States Criminal Code =.In its1963 report, the Commission
states:
"Long before this Commission was established in 1957, the
doctrine of equal opportunity had been firmly embedded in the law.
It was eloquently stated in the Dedaration of Independence and
reaffirmed in the Bill of Xights and the 13th, 14th, and 15th amend-
ments to the Constitution. It has since been implemented in aseries
1 Vide paras. 8and g,supra.
1961 U.S.C.C.R. Book I,p.2 and 1963 R.U.S.C.C.R., pp.1-4.
1961 U.S.C.C.R.R., Book r, p.73.
Ibid.p. 7.
Ibid., p. 74, ffurtherdetails. 436 SOUTH WEST AFRICA
of judicial decisions which affirm without qualification that racial
segregation in any aspect of public life violates the Constitution '."
In addition, over the past two decades numerous legislative, executive
and administrative çteps have been taken by the Federal Government
with the object of ending the discrimination against Negroes in various
spheres of society 1.Some of these measures will be briefly referred to in
the following paragraphs hereof, under the appropriate particular
headings.
F. The Extent ta which Government PolicyintheUnitedStatesHas Failed
ta Achieve Success
12. In their argument Applicants have pointed only to the advantages
that may result from the enforcernent ofanti-discriminatory legislation,
omitting even to mention the difficulties that have been encountered by
the Governrnent of the United States in itsattempts to implement such a
policy, and the disadvantages that have resulted therefrom. Applicants
have thus presented a one-sided account of thc effects of governmental
atternpts to enforce integration.
Incorrecting the distorted image, liespondent is compelleed to hold up
the other side of the picture, the negative side: the extent to which the
aim of the policy still falls shorof achievement, and the harrnful effects
that have followed inits wake. In doing so,Respondent mut not be taken
to suggest the complete converse of ivhat Applicants contend-that
governmental policy in the United Stateshas had no beneficial, and only
detrimental, results. Respondent certainly +es not aver that, in the
particular circumstances existing in the United States, no progress of
any significance haç been made in regard to desegregation by gover?:
mental action. For the sake, however, of a proper evaluation of Appli-
cants' contentioii that asirnilar policy should be adopted by Rcspondent
in South M'est Africa, the negative and harmful aspects of the policy as
applied in the United Statesmust necessarily also be broiight into account
-in addition to the very important differences between the factual
situations in the two countries, as discussed above.
13. The United States Commission on Civil Rights noted in its 1g6r
report that in the two years since its first report there had been "dynamic
changes in civil rights at ail levels of government" *, but found that
despite this progress "the Nation stilI faces substantial and urgelit
problems in civil rights" 3. The major civil rights problems discüssed in
the 1961 report were summarized as follows:
"In some xoo counties in eight Southetn States there is reason to
believe that Negro citizens are preventecl-by outright discrirni-
nation or by fear of physical violence or economic reprisal-from
exercisiiig the right to vote.
There are many places throughout the country where, though
citizens ma37 vote freely, their votes are seriously diluted by iin-
equal electoral districting, or nialapportionment.
There are many counties in the South where a substantial Pu'egro
1 1963 R.U.S.C.C.R.,p.r.
2 1961U.S.C.C.R.R., Book I. p.2 andfor furtherdetriils vpp. 2-5.
Ibid., p5 KEJOINDER OF SOUTH AFRICA 437
population not only has no voice in government, but suffers extensive
deprivation-legal, economic, educational, and social.
There are still sorne places in the Nation where the fear of racial
violence clouds the atmosphere ...
Unlawiul violence by the police renlains i1g6r not aregional but
a nationalshame.
In public cducation there still are three States-Alabama,
&lississippi,and South Carolina-where not onepublic schoolor coilege
conforms witli the constitutional requirements enumerated by the
Supreme Court 7 years ago. In May 1961,2,062 of the 2,837 biracial
school districts in the 17 Southern and border States remained
totally segregated.
....... ................
A Federal court decision in 1961 brought to the Nation's attention
the fact that unconstitutional inequality-in public education is not
confined to Southern States. Such inequalitieç in public educational
systems seem to exist in many cities throughout the Nation.
Unemployment in the recent recession, hitting Negroes more than
twice as liard as others, underlined the fact tliat they are by and
large confined to the Ieast skilled, worstpaid, most insecure occu-
pations; that they are most vulnerable to cyclical and structural
unemployment and least prepared to share in, orcontribute to,the
economic progreçs of the Kation.
Although racial segregation in thc Armed Forces of the United
States officially ended6 years ago, it continues in some parts of the
Reserves and the National Guard.
filucli of the howing market remains closed in 196r to millionsof
Amcricans because of their race, their religion, or their ancestry;
and partly in consequence millions are confined to substandard
housing in slums.
In spite of repeated comrnitments to the principle that benefits
created by the funds of al1the people shallbe nvailable to al1without
regard to race, religion, or national ancestry, the Federal Gove~-
ment continues in some programs to give indirect support to dis-
criminatory practices in higher education, in training programs, in
employment agencies and opportunities, in public facilities such as
libraries, andin housing l."
14. Two years later, as appears from the Commission's 1963 report,
these problems remained substantially unchanged, although some pro-
gress has been made. M'ith reference to the legislative, judicial and
administrative measures affirming and implementing the doctrine of
equalopportunity, the Commission remarked:
"Yet, as the Commission was to learn from Gyears of study and
investigation in al1sections of the Nation, the civil rights of citizens
-particuIarly ofNegro citizens-contintdecito bewidely dzsregarded'."
(Italics addcd.)
\hile reporting "an atmosphere of genuine hopefulnesç", the Com-
mission alsofoundthat-
"[tlhere is a broadgu1f beiween the abandonment of enforced çegre-
1961 U.S.C.C.R. Rp.5-6.
1963 R.U.S.C.C.R., pI.438 SOUTH WEST AFRICA
gation and the achievement of a society in which race or color isnot
a factor in the hiring or promotion of an employee, in the sale of a
home, or in the educational opportiinity offered a child l".
In the following paragraphs çome more detailed indication isgiveri of
the extent to which the Government's integration policy has in fact not
met with success in the particular fields of voting, education, employment,
housing, justice, and social contact.
15. Voting. The command of non-discrimination contained in the 15th
amendment to the Constitution was reinforced in 1957 by the passage
of a Civil Rights Act, which, inter dia, authorized the Federal Govern-
ment to bring civil actions for injunctive relief where discrimination
denied or threatened the right to vote, and which forbade intimidation,
threats, and coercion for the purpose of interfering with the right to vote
in federal elections 3.Two years later the results of the Act seemed dis-
appointing 3. In 1960 a further Civil Rights Act was passed for the pur-
pose of giving effect to certain recommendations that had been made by
the Civil Rights Commission in its 1959 report, and which provided, inter
aliaf ,orthe appointment of federal voting referees when a pattern or
practice ofracial discrimination is found to exist 4.The Commission found
that the United States Department of Justice had acted with vigour tci
apply the Civil Rights Acts and that since 1960 it had initiated and sus-
tained a determined attack on racial discrimination in the franchise 5;
this resuIted in a considerable arnount of litigation6.
Nevertheless, the Commission's reports indicate that there are a!least
IOO counties in eight southern states urhere there is reason to believe that
substantial discriminatory disfranchisernent of Negroes still exists 7;the.
IOO counties referred to in the reports contained nearly a third of all.
Negroes of voting age in the rI States of the former Confederacy
Registration statistics by race in 1960 indicated that in 17 of the 21 SO-
called "black-belt" counties, where Negroes form the majority of the
population, they did not vote at all, or did so only in small numbers.
The reasons for the failure to vote include fear of economic or physical
reprisalç, officia1discrimination, blatant or siibtle, and lack of education
and motivation 9.
In 1956, the last year before the passage of the first Civil Kights Act to
secure the rights to vote, about 5 per cent. of the voting-age Negroes in
the roo counties referred to above were regiçtered to vote. Seven years.
later the Commission commented:
"Despite the subseqiient passage of two civil rights acts, the insti-
tution of 36 voting rights suits by the Department of Justice, and
the operation of several private regiçtration drives, Negro registration
inthese countie hns risen onlyto8.3 per cent. l0"(Italicsadded.)
11963 H.U.S.C.C. R., p.4. Vide also para24, intva.
2 Véde para. r1,supra.
1961 U.S.C.C.R.R., Book 1,p. 75.
Ibid.p,p.76-78.
Ibid. p.136 and r963 R.U.S.C.C.R.. p. 13.
Vide 1961 U.S.C.C.R.R., Book 1,pp. 79-100and 1963 R. U.S.C.C.R., pp.16-26..
' 1961 U.S.C.C.R.R., Book 1, p. 23and 1963 R.U.S.C.C.R., p. 15.
1963 R.U.S.C.C.R., p. 15.
1961 U.S.C.C.R.R., Baok 1,pp. 195-196 and videalsop. III.
'O1963 R.U.S.C.C. pR.,14-15. REJOISDER OF SOUTH AFRICA 439
"An examination of tiic IOQ coiinties wherc denials of voting
rights were indicated in the 1961 Voti- Report compeis the con-
clusion that racial discrimination persists and the policy of the
Civil Rights Acts has been frustrated l."
Generally, the Commission came to the conclusion that :
"Its findings reveal clearly that the promise of the 14th and 15th
amendments to the Constitutionremains unfulfilled.
. . . the right to vote is still denied many Americans solely because
of their race*."
Two members of the Commission said in a concurring statement that:
"The evil of arbitrriry disfranchisement has not diminished
materially ... Progress toward achieving equal voting rights is
virtually at a standstill in many localities 3."
16. Education. In 1954 the Supreme Court of the United States decided
that enforced racial segregation in public education is a denial of equal
protection iindcr the 14th amendment of the Constitution 4.The decision
recognized that the Negro and White schools involved had heen, or were
being, equalized, in al1 tangible respects, but held that separate educa-
tional faciIities are inherently unequal 4. A ycar later tlieCourt reaffirmed
the principle that racial discrimination in public education is unccysti-
tutional and held that al1provisions of federal state orlocal law requiring
or permitting racial segregation in public schools were void Ail school
authonties were required to make a prompt and rcasonable effort in good
faith to comply with the Constitution 5,and lower courts were iristructed
to considcr the adequacy of the plans proposed by school authorities
"to effcctuate a transition to a racially nondiscriminatory school S~S-
tern .. . with al1 deliberate spced" 6. A large volumc of Court decisions
followed over tlie years, inwhich the requirements of descgregation wcre
enforced '. In rnany cases the Courts dealt with the unconstitutionality
of massive legislative resistance measures passed by southern states
opposing enforced desegregation of schools
The efforts of the Supreme Court to bring about integration in the
schools have niet with but limited success. In 1961 the Commission on
Civil Rightsreported:
';The Nation's progrcss in renioving the stultifying effects of
segrcgation in the public elenientary and secondary sc~iools-North,
South, East, and UTest-is slow indeed 9."
In 1963 the Conlmission found that progress continued to be slow in the
south 'O,while in the north aiid west school segregation \vas still wide-
11963 R.U.S.C.C.R., p. 16.
2 Ibld..o. 1..
3 Ibid.,11.30.
1061 U.S.C.C.R.R..Book 2.p. -.'l'heCommission referstothe decisionas the
"histotic dccision in theSchool Scgrcgation Cas#$"; caseisalso known asBrown's
Lase.
5 Ibid. p. IO.
. 6 Jbid.,p. 7.
Ibid.. pp. 7-10 and 13-37, for further details.
Ibid., Rook 1,p. 6and Book 2, pp. 65-77.
196sU.S.C.C.R.R.,Bookz,p. 173.
*O1963 R.U.S.C.C.R., p.63.440 SOUTH WEST AFRICA
spread because of existing segregated housing patterns and the practice
of assigning pupils to neighbourhood schools l.
Seven years after the first Supreme Court decision mentioned above,
2,062 out of 2,837 school districts intlie south in which bvthWhite and
Negro pupils were involved, had not even started to comply with the
Constitution 2.Others had barely begun a 12-year progression, and some
had kept the number of Negroes attending at formerly White schools at a
minimum 3. In the two years from 1959 to 1961 there was in the 17
southern and border states an increase of only 1.5per cent. in the number
of biracial schooi districts which were desegregated at least in part '. In
1963 most schools in the South continued to be segregated by official
policy 5. By then, about one-third of the biracial districts in the 17 sou-
thern and border states had policies or practices permitting the admission
of Negroes to formerly alI-White schools;yet only8 percent.of the Negro
pupils in these states attended schools with Ifrhite children 6. Over 94
per cent. of these Negro students attended schools with Whites in the
six border states; three southern states still had no Negrocs attending
schools with Whites belosv college level 6.In 1964 it was estimated that
in the IO states of the Deep South less than six-tentlis of I per cent. of al1
Negro children attended school with \mites 7. Many of the southern
states have resisted desegrcgation by means of various legislative and
administrative measures by 1gG3 the Commission found no evidence
that this resistance was dissipating. Even token desegregation had only
corne after a larvsuitwas threatened or prosecuted 9.
In the north and west, where segregation is not officially countenanced,
itexists in fact in many public schools '0.In New York City the number of
elementary schools containing go per cent. or niore Ne ro andlor Puerto
Kican students more than doiibled between 1957-1 59 5nd 1963~1964;
during the same period the number of junior high schools so circum-
stanced increased by 250 per cent. 11This indicates a marked and pro-
gressive segregation despite the fact that the New York City Board of
Education had made racial integration in the schools a major policy goal
in 1955 12.Sin~ilarly,in Chicago some 87 per cent. of Negro elementary
school pupiIs attend virtually a11-Negro schools, while in PhiIadeIphia
14 per cent. of al1public schools have a Negro enrolment of over 99 per
cent. '3
17. Employment. In the sphere of emyloyment, non-discrimination has
-
l1963 R.U.S.C.C.R., p. 53.
*1961 U.S.C.C.R.R.. Book z.pp. 39and 173,
Ibid., p.173.
'Ibid.p,. 39 and for detailvidepp. 39-63.
' 1963 R.U.S.C.C.R.. p.53.
Ibid. p.63.
Silberman, C. E.,Crisisin Black und Whiie (1964)p,.289.
rg6r U.S.C.C.R.R., Book 2, pp. 65-98.The eruption of racial violence and
rioting as a resuofeniorced desegregation is referred to in p25,.infra.
1963 R.U.S.C.C.R., p. 68.
'O 1961 U.S.C.C.R.R.,Book 2,pp. 99-115 and 173.
l1Silberman, op. ciip. 29~.Decter,M.. "TheSegro and the New York~chools",
Commenlary, 1'01.38.xo. 3 (Sep.1964).pp. 25-34.
l2Silberman, op.cil., p290.
'"ickel, A. M., "The Decade of School desegregation", Columbia Law Rmiew,
Vol.64. No. 2 (Feb. 1964).pp. 193-229 atp. 215. REJOINDER OF SOUTH AFRICA 44=
for many years been the declared policy of the Federal Government,
which is the nation's largest employer l.Discrimination in federalemploy-
ment, based on race, creed, or colour, waç specifically proscribed in an
Act of 1940 l,and administrative measures were taken subsequently to
implement the policy =.
Nevertheless, the Commission on Civil Kights found in 19-51 that
discrimination against Negroes still existed in many branches of the
employment field and that such discrimination contributed to the de-
- pressed economic status of Negroes 3.With regard to apprentice training,
for instance, the Commiççion noted that large segments of the population
were denied access to work and training in many skilled occupations
becauçe of wideçpread prejudices against racial and ethnic groups, the
discrimination being the strongest and most widespread in the case of
Negroes 4. As a result, Negro workers continue to be concentrated in the
lessskilled jobs 5. This in turn is reflected in Negroes being disproportion-
ately represented amangst the unemployed 6; from 1958 to 1962, for
instance, the rate of unemployment for Negroes remained throughout at
more than twice that of the White population '. The Commisçion remarks
that the old adage that Negroes are the last hired and the first fired has
been al1 too clearly demonstrated Also, Negro workers geiierally
occupy less senior positions than IVhites 9, and their median income is
considerably less than that of Whites with the same level of education Io.
The Commission concluded that ". .. the goal of equal employment
opportunity is still far from achievement" ll.Other conimentators have
taken an even more pessimiçtic view; finding that, contrary to popular
impression, the Negroes' economic position has actually deteriorated over
the last ten years,relative to that of IVhites 12.
18.Uousing. In 1866a Civil Rights Act was passed by Congresswhich
provided that al1citizens of the United States shall have the same rights,
in every state and territory, as is enjoyed by White persons therein, to
inherit, purchase, lease,sell, hold and convey real and persona1property 13.
The 14th amendment of the Constitution guaranteed that this right could
not be denied on the state or local level 13.As early as 1917 the Suprerne
Court had ruled iinconstitutional an ordinance requiring racial segregation
in housing '3,a principle which was reaffirmed in siibsequent decisions of
1961 U.S.C.C.R.R., Book 3. pp. 6-17 and 19.
2 Ibid.. pp.21-26.
Vbid., pp. 2-3,153 and I59-161.
+ Ibid., p.108.
Ibid., p.153.
1963 R.U.S.C.C.R., p. 9u.
United States Department of Labor, The Economic Situation ofNegroes in th8
United States (Revised 1962).pp. 4-5 and rg63 R.U.S.G.C.R., p. 73.
1961U.S.C.C.R.R.. Roolc 3. p. r.
Ibid..p. 155and United States Department of Labor, The Economic Situation
of Negrocs in the UnitedStace$(Revised 1962), pp.4 and 6.
The Economic.CSituationof Negroes in the Ufiited States (Revis1962),p.Lg.or.
l11961 U.S.C.C.R.R., Book 3.p. 155.
l2 Silùerman, @. cif.,p. 41.Vide also Killian, L.and Grigg,C.. Racial Crisisin
Amcrica: Leadership in Conflict (19641p,.117.
1' 1961 U.S.C.C.R.R.. Book 4,p. 16.M2 SOUTH WEST,AFRICA
the Court l.Since 1949 various administrative measures have been intro-
duced with the object of ending segregation.in housing 2.
But the Civil Rights Commission found that it was still an urgent fact
that a considerable number of Arnericans were being denied equal oppor-
tunity in housing by reason of their colour or race 3. Since the First
World \Var, when Negroes hst moved north in significant numbers,
discrimination against them had been fairly commoii in roughly its
present form l. By 1933 racial discrimination had beconle an operating
practice of the private housing industry l. Residential segregation
between Negroes and CZihiteshad increased steadily over paçt decades +.
The forces preventing equality of opportunity in housing begin with the
prejudice ofprivate persons, but they also involve large segments of the
organizecl business world The Commission stated:
"l'liroughout the country large groups of American citizens-
tnainly Negroes, but other minorities too-are denied an equal
opportunity to choose where they will live. Mucli of the housing
market is closed to them for reasons unrelated to their personal
worth or ability to pal'. New housing, by and large, is available only
to whites ...
As a consequence, there is an ever-increasing concentration of
non-whites in racial ghettos, targely in the decaying centers of our
cities-while a 'white noose' of new suburban lrousing growç up
around thern 'j."
A mernber of the Neiv York'3Iayo1'sCornrnjssion on Intergroup 12elations
haç stated :
"The harsh reality is that the seemingly relentless ghetto trend
takes place under a smoke-screen created by the very 'gains' so
welcoined by proponents of civil rights. This trend moves on-while
we hail the enactment or introduction of anti-discriniination laws
in state and municipal legislatures throughout the North and
\l'est... 7"
Kecently, even "the introduction of anti-discriniinatory laws" suffered a
set-back in the state of California, when the electorrite votecl overwhelm-
ingly in favour of a proposed amendment to tlie str~te Constitution,
wliich would have the effect of nullifying California'sFair Housing Act.
This Act, aIso known as the "Rumford Act", was passed in 1963, and
made it unlawful "[flor the owner of any publicly assisted housing accom-
modation .. . to refuse to sell, rentor lease or otherwise to deny to or
withhold from any person or group of perçons such hoiising nccommo-
dation because of the race, color, religion, national origin, or ancestry
of such pcrson or persons" During the recent American election, the
voters of California were asked at the same time to vote on a proposa1 to
1961 U.S.C.C.R.R., Book 4. p. 16. .
1963 R.U.S.C.C.R., pp. 96-101.
1961 U.S.C.C.R.R., Book 4. pp. 144-145and1963 R.U.S.C.C.R., p. 95.
Silberrnan,op.cit.p. 43.
1961 U.S.C.C.R. BR.ok 4,p. 2.
Ibid.. pI and videalso 1963 RU.S.C.C.R p..,5.
' Horne. F. S., "Interracial Housing in the United States", Phylon ,VolNo.IX,
I (Spring 1959)p.p.13-20 at p.14
"tate al California, Department of Justice, ConstitutionalRights Section.
EquaI Rights under the Law: Key Laws, Fair HousingAct (1964). REJOINDER OF SOUTH AFRICA 443
amend the state Constitution; the amendment was to prohibit the state
and its agents from denying, limiting or.abridging "the right of any
person, who is willing or desires to sell, lease or rcnt any part or al1of his
real property, to decline to seI1,lease or rent such property to such person
or persons as he, inhiç absolute discretion, chooses" l.In the result, the
proposed amendment was approved by 4,101,zgg votes to 2,116,31 an,d
the Fair Housing Act thus rendered nugatory.
Another commentator has referred to-
". .. the kind of racial movement which, in the last thirty years,
has turned segregation from a negligible city phenomenon into a
vaçt urban institution 2."
19. Juslice. In the United States, it haç been said, the jury isperhaps
the most important instrument of justice, for jury service is the only
avenue of direct,particjpation in the administration of justice open to
the ordinary citizens 3. In 1875 a law waç enacted prohibiting 'ury
esclusion by reason of race; çince that time the exclusion of persons rom
juries by reason of their race.has always been a federal crime 4.For over
80 years the Supreme Court has repeatedly held the discriniinatory
exclusion of Negroes [rom jury service to be a violation of the equal
protection cIause of the 14th amendment 5.
Still :
"The practice of racial exclusion from juries persists today even
thoiigh it has long stood indicted as a serious violation of the 14th
amendment. As a result, the bar of race and color is placed at the
only gate through which the average citizen niay enter for service in
the courtç of justice 6."
The Cornmissiosi on Civil Rights found that, while the discriminatory
excluçion of Negroes from jurieç has diminished during the past century,
this badge of inequality persists in the judicinl çystem of many southern
counties, in some of which the practice of jury exclusion is an enduring
institution 7. In II out of 21 southern "black-belt" counties Negroes have
never served on grand or trial juries
20. Social Contact. The Federal Governrnent's policy of non-discrimi-
nation does not appear to have stimulated social integration between
Negroes and Whiteç to any marked degree. Two socioiogical studies, the
one conducted in an upstate New York coinmunity 9, and the other in a
small New England town Io,have recently been referred toin the following
terms:
1 ProposedAmendmenls lo Constitution :Proposition andproposed Laws, together
wi2hClark,eD.,ThaiGheftoGame M:Racial Conflicts in the Cit(~qbz),p.a43.Il,p. 13.
3 1961U.S.C.C.R.R., Book 5,p. 89.
+ Ibid., pp. 89, 95 and10s.
6 Ibid.,p. 103.
' Ibid., pp.106,108.
Ibid.. p92,
Johnson, R., "NegroReactions to Xnority Croup Status", in Barron. hl.
(Ed.1, Amcrican Minarilies (1957).pp. 192-2rz.
10Lee,F. F., "The Race Relations Pattern by Areas of Behavior in a Smdl New
England Town". American SociologicaE Review, Vol. XTX, No. 2 (Apr. 19.54).
PP. 138-143.444 SOUTH WEST AFRICA
"These two studies of race relations in communities with very
small Negro populations, lacking.'Southern traditions', and located
in states which have civil rights laws and commissions, demonstrate
the #ervasivenessof the senseof 'theNegro's$lace'as an alielzand a
social inferior throughoutAmerican society. Summing up studies of
the Negro's position based on 'social-distance scales', Muzafer and
Carolyn Sherif observe that there is a scale of social distances
established throughout the United States, accepted in sonie degree
by the ovenvhelming majority of people, and remainingremarkably
consistent overalong time period.The Negro remains near the bottom
of this scale, below even recent immigrant groups l." (Italics added.)
21. ln Ceneral. Respondent submits that the brief surlrey contained
in the preceding paragraphs hereof lends considerable support for the
view of the American situation expressed by the Washington correspond-
ent of TheTimes on 27 August 1963 in the following terms:
". . . there can be no argument that the c&binatiot$ of favourable
circumstanceshere has failed to produce even the beginnings of an
integrntedsociety. The assimilative processes of American society, it
secms, cannot absorb Negroes, even wilh the help ami wgilzg of a
benevolentFederaEGovernmant 2."(Italicsadded.)
22. TWOobservations on the pattern of racial discrimination in the
Uriited States require to be made. On the one hand:
"Discrimination against Negroes seems to be fiositivelcorrelated
with their relative number 3." (Italicsadded.)
"Itisapparent that thedegreeofracialereiudiceanddiscrinainaiion
is highlcy orrelatedwith the relative size of the groups i~zvolved.. .'"
(Italics added.)
In regard to the registration of Negroes as voters the Commission on
Civil liights reported:
"Another pattern that emerges isan inverse correlation between
Kegro concentration and Negro registration . . . In the more Southern
States, both on a statewide hasis and in terms ofcounties, a greater
concentration of Negroes generally means a smaller proportion of
Negroes registered. Perhaps the reason for this relationship is that
thewhitecommunityseesa laighconcentrationof Negroesas a political
lhreat and Ilterfiforefeels impelled to pvevenl Negroes {rom voting.
Certainly events in Macon Coiinty, Alabama, and Fayette and
Hayrvood Counties, Tennessee, where the whites reacted vigorousty
to an apparent threat of Xegro political inundation, suggests sucli
a pattern . ..5" (Italics added.]
On the other hand, discrimination against Negroes is certainly not
confined to those areas of the United States where the majority of the
lKillian, L. aiid GriC.,RaciaC lrisisnA rnsvic:Leadership in Conflic(~gGq),
pp. The Times (late London air edition), 27 Aug. 1963.
Becker, C.S.. The EconomicsofDiscrimination(1957)p. 123.Videalsoberelson,
R. and Steiner. G. A., Necman Behavior: An Inventory of Scientific Findings (1g6q).
P. 515.
U.S. News und Wwld Report, 30 Mar. 1964,p. 37.
' 1961 [J.S.C.C.R.R., Book1,p. riz. REJOINDER OF SOUTH AFRICA 445
Negro population reside l. Dealing with the differing nature of civil
rights problemç in the north and the south, the Commission commented
as follows:
"In the South race restrictions Iiave been strongly supported by
law, tradition, andpopular attitudes. In the North, whcre Negroes
until recently have been a small proportion of the total population,
rcstrictions arenot the result of law, officia1policy, or acknowledged
tradition-indeed many cities and States have laws prohibiting
discrimination. Yetdiscriminationpersists 2." (Italicsadded.)
G. Detrimental Results of the Federal Government's Policy in the
United States
23. Thus far Respondent has drawn attention to the extcnt to which
the anti-discrimination policy of the United States Governrnent, which is
reflected in its legislative and executive actions, has iailed to achieve the
object of wiping out racial discrimination against Negroes. Reference
must now be made to gricvously harmful results that have followed in
the wake of govemmental attempts to enforce deçegregation. These
have included strong and widespread resistance by the White population
to enforced integratjon; racial tension, riots and violence; and large-scale
bloodshed and darnage to property. liespondent \vil1not attempt to give
a cornplete account of the occasions on which racial conflict in the United
States has erupted into violence over the past decade; the examples
mentioned in the foIlowing paragraphs hereof will suffice for the purposes
of Respondent's argument.
24. The Commission on Civil Rights noted that-
<r... since the Supreme Court desegregation decisions and increas-
ingly urgent demands by Negroes for full equality, tension and
violencelzaveincreasedin someparts of thecountry 3."(Italics added.)
". .. this Commission must report that Negro citizetzsinsomeplaces
today live ifi fear of violence-accompanied by fearsome doubts
regarding police integrity on race problems. It has seen this fear in
the attitudes of Kegroes it haç interviewed; in their unwillingness
to testify before the Conimission-often in their unwivitlingnesseven
to speak to Commission representatives. The same fear sometimes
prevents the citizen £rom secking redress from the Federal Govern-
'ment for violation of his rights. This fear is often without foundation
any Ionger-but itexists 4." (Italics added.)
"The present conflict has brought about çome progress, but it hs
also createdthedangerthaiwhiteand NegroAnaericawsmay bedriven
even furtherapart and left agailrwifh a legacy of hale,fear, and mis-
trust 5."(Italicsadded.)
l "In 1900,about 90% of Negroes livedin the South, Iargely in rural are.s.-.
and cities. Some 38% were in urban areas in the hTorthor West. Only abouttone-
fourth remained on farms.nearly al1in the South." United States Department of
Labor, The Economic Situalion oNegroes inthe UniledStates (Revised. 1962)p. 2.
1961 U.S.C.C.R.R., Book I.p. 12.
Ibid., Book 5,p.33.
4 1bid..p. 43.
1963 R.U.S.C.C.R., p. 4. . , .446 SOUTH WEST AFRICA
Kecent events do not suggest that there has been an improvernent in the
situation described by the Commission, as will appear below.
25. An example of the resistance to enforced desegregation of çchools
is affordcd by the events in the towii of New Orleans, Louisiana, during
1960-1961 l.When it appeared in the summer of 1960 that the federal
Court order to desegregate the first grades of New Orleans schools in
the autiimn of 1960 would be enforced, the Governor and General Assem-
bly of Louisiana resisted by every means at their command. In five days
of "hysteria" during November 1960, 21 emergency bills were passed
to preserve segregation. The General Assetnbly was called into special
sessions fivetimes during 1960-1961, at a total cost to the taspayers of
sg34.000, in a vain attempt toprevent the admiççjon of Negro children
to the \Vhite schools. On 14 November 1960, four 6-year-old Negro
girls, accompanied by United States hiarshals, enrolled in the "\Villiam
Frantz:' and "McDonough 19" elementary schools. A day of rioting
followed; White high school students, thwarted in their ambitions to
"get the Rlayor" and march on the schools, burnt the American flag;
screaming mobs of women milled in front of the two schools.
'The Commission remarked that the violence that occurred in New
Orleans in conjuction with schooi dcsegrcgation stands out in striking
contrast to the city's reputaticlnof gaiety. The schools were promptly
boycottcd by most IVhite pupils; some transferred to schools in an
adjoining parish, but it is estimated that nearly 300 iIrhite children
received no schooling whatever throughout the school year. The number
of \\'hite students attending "Williani Frantz" with one Negro girl
reached a maximum of 23 in December 1960, but "&lcDonough rg" was
completely boÿcotted by \i7hite pupils until January 1961, when a White
boy joined the three Negro girls there. At the end of the1961 school year
only 15 IVhite pupils were enrolled at "William Frantz" with one negro
girl,and only the three Negro girls attended "illcDonough 19" 2.I3y19%
Negroes represented only slightly more than Iper cent. of the children in
Louisiana's desegregated schools 3.
26. The history of Birmingham, Alabama, prior to 1950, included a
number of bloody incidents, in which the element of race was partly
involved 4.Ry the early 1950s industrial peace and iessening racial
tension had led some people to believe that a permanent break had been
achieved in the iinhappy tradition of violence 4.With the second Scliool
Desegregation Decision on 31 Blay 1955 ,owever, racialism and violence
reviveid n Birmingham Racial tension and acts of violence increased
throughout theState.
"From 1956 to rg6r at leastzo violent acts were publicly reported
in Birmingham alone, including allegations of racially-motivated
beatings, bombings, and one castration 6."
In 1956 a segregationist told a rally in Birmingham: "We want trouble
and we want .it everywhere we can get it" 7.In 1957 a White mob
Vide1961 U.S.C.C.R.R., Book 2,pp.41-43.
Ibid., p. 33.
1963 R.U.S.C.C.R., p. 231..
1961U.S.C.C.R.R.,&ok5,p.34. .
' Ibid.. p34.3-37.
' Ibid.. p35. t . REJOINDEK UF SOUTH AFRICA 447
attacked a White man who had joined a Negro leader and liiswife in a
\jThite station waiting room, and stoned his car; later in the same ÿear
the same Negro was attackedand severely beaten by a White mob which
also hurled stones at cars driveri by Negroes. Acts of violence continued
in 1958 1,959 and 1960.In the last-mentioned year Birmingham's Police
Commissioner declared :
"The truth is, ladies and gentlemen-they (Negroes) don't want
racial equality at all. The Negroes want black supremacy.
Yes, we are on the one-yard line. Our backs are tothe wall. Do we
let them go over for a touchdown or do we raise the confederate Aag
as did our forefathers and tell them, 'You shall not pass!' l."
In 1961a field repart of the Civil Rights Cornrnisçionfound "... the
clearest documentation of the climate of fear and the conspiracy of
silence that exist in Birmingham", and concluded as follows:
"Racial prejudices are incredibly tense in Birmingham. Until
local leaders niake a concerted effort to control those feelings, the
slightest provocation can be expected to unleash acts of violence as
ugly and as frightening as any that Birmingham has seen in its . ..
history 2."
About three weeks after the field report was written, two srnall groups of
White and Negro bus passcngers, styling themselves "Freedom Riders",
embarked on a journey from Washington to the southern stntes witll the
avowed purpose of challenging racial segregation ininter-state bus travel.
When they reached the state of Alabama, violence erupted 3.A rnob of
Whites of Birmingham attacked the bus paçsengers, and a Birmingham
newspaper commented that fear and hatred stalked Birmingham's
streets 4.Similar events occurred in the towns of Anniston and Mont-
gornery, the state capital: in the former, an incendiary device was thrown
through the window of the bus, setting it ahe; in the latter, another
group of "Freedom Riders" was attacked and brutally mauled by a mob
of White men and women, and a sirnilar mob rioted outside a church
where Negroes were holding a meeting, setting fire tone car and stoning
otliers.
Shortly thereafter Attorney-General Robert Kennedy expressed the
liope that the tragic events in Alabama would not again arise in the
country 5.His hope was not fulfilled; Birmingham itself again experienced
racial violence in 1963 6.Early in that year the Negro leader Martin
Luther King, deçcribing Birmingham as the most thorouglily segregated
big city in the United States, announced that he would lead dernonstra-
tions there until this situation waspermanently altered. In April, Ncgroes
began a daily tnarch through the city, and each day more of then1 were
arrested; wvithinthree weeks hundreds had been arrested. On 7 May the
demonstrations erupted in violence: more than z,ooo Negroes swarmed
through police lines, rnoved down to~vnand pelted the police with stones.
Altogether more than 3,000 Megroes had been irnprisoned before the
1961 U.S.C.C.R.R.. Book 5. p. 35.
Ibid., p36. . . . ..
Ibid., pp. 2'9-33.
ibid., p. 30. , .
Ibid., p..44.
6 Vtde MacAdarn, I., ThaAnnual ~8~is6evofwovldEvenfs :A Review ofthe Year
1963 (1964)p~p. 181-182. - T A . ' . ...,44s SOUTH WEST AFRICA
demonstrations u7ereover l.Dogs, clubs and firehoses were used to dis-
perse niass denionstrations =.Bombs exploded in the house of Dr. King's
brother and at the headquarters of the Negro cainpaigners, touching off
a night of rioting in which at least 50 people were injured.
Troops had to be used to enforce a federal Court order for the ad-
mission of Negroes to the University of Alabama. Tlie President of the
United States appealed to the nation to examine its conscience about this
and of related incidents; shortly after he had finished speaking the
hTegro secretary of the National Association for the Advancement of
Coloured People in Mississippi was shot in the back and kiiled outside
his home in Jackson
27. Sometimes the reaction ofthe IVhite section of the population to
enforced integration has taken the form of economic reprisals against
Negroes. Thus, in Fayette and Haywood Counties, Tennessee, a drive to
-encourage the registration of Xegroes as voters led to intensive and
serious economic retaliation by the White population j.Negroes who
registered themselves to vote were boycotted; traders ceased trading
with them; their credit was stopped; their loans called up; their mort-
gages fcireclosed; their empioyment, sharecropping and tenancp relation-
shipterminated 3.
28. Peaceful sit-in demonstrations by Negroes sparked off racial
'violence in Jacksonville, Florida, during August 1960 4. It started when
ViThitemen launched a series of attacks on Negroes in an apparently
carefully planned assault. The \Rites were armed with axe handles and
baseball bats; two White men were seen cutting the wire from a bundle
containing about 50 new axe handles, which were passcd out to the
waiting crowd. The attacks soon developed into a race riot which con-
tinued for several days.
29. Although it has been observed that-
"[tlhe greatest resistance to school desegregation and extension of
the franchise anses in those areas where the sjzeof the Negro popu-
lation approachesor exceeds that of the white 5",
violent resistance to enforced desegregation has not been confined to the
southern states of America. The Commission on Civil Rights stated:
"No section of the Nation has a monopoly on racial violence. In
the North and West the breedingplaces for discord have been the cities
where Earge concentrations ofNegroes and whites are in direct compe-
tition for mployment and housing. Following mass Negro migrations,
racial tension erupted in Detroit, Los Angeles, New York, and in
other cities during the early 1940s causing severe loss of life and
property damage 6." (Italics added.)
30. In the north, the more recent history of violence in Chicago, from
1953 to 1961, bears testimony to the racial explosions that may accom- '
' XIacAdam, op.cit.p. 182.
* 1963 R.U.S.C.C.R., p114.
' As described in 1961 U.S.C.C.R.R., Book 5. pp. 37-39.
Dr. Brewton Berry, as quotedin U.S. Newsand Wovtd Report, 30 Mar. 1964,
P 27rp6r U.S.C.C.R.H.. Book5, p.39. . . REJOINDER OF SOUTH AFRICA 449
pany compulsory desegregation l. In July 1953, the Trumbull Park
Housing Project riots started in the South Deering section of Chicago.
As soon as Negro families bzgan moving into the previously all-White
project the residents of the neighbourhood started rioting. During the
next four years Whites conimitted numerous acts of violence against the
few Negroes in the project. Kegro tenants liad to travel to and from their
liomes under police guard. On some occasions 1,200 policemen were
assigned tocover the housing project area during the course of a q-hour
pcriod.
In the summer of 1957 rioting began again near the South Deering
area; this time the issue was the use of Calumet Park by Negroes. The
police did not prcvent crowds numbering several thousands from gather-
ing outside the Park on consecutive Sundays, from throwing rocks at
Negro motorists, or froni attacking Negro pedestrians. For several weeks
the situation was tensc, and hundreds of police were required to keep it
from getting worse 2.
Another incident took place in 1959, when a Negro family bouglit a
hoilse on N'est Jackson Boulevard '.Crowds gathered, rocks were thrown
and threatening telephone callsmade. Two minor disturbances occurred
in the summer of 1960. One urasat a beach, the otlierina city park; both
were prompted by Negroes using swimming facilities usually only used by
\Irhites. In 1961 new instances of inter-racial violence again erupted in
Chicago; the Police Department took vigorous action to qucll the
trouble l.Chicago's history ofracial violence continued up to the summer
of 1964, when violence again broke out there.
31. Perhaps the ulorst instances of racial conflict occurred rnost
recently when during the summer of 1964, violence rocked the United
States. This explosion ofracial violence followed shortly aftethe United
States Congress had again paçsed a Civil Rights Act in furtherance of its
policy. From 18 July until 23 July New York City suffered rioting
that broke out in the Negro residential section. Before the rioting was
brought under control by police armed with hand guns, rifles, shot guns
and teargas, one person was killed, 144 werc injured, 519 were arreçted
and 541 places of busineçs were darnaged and looted al a cost to the
community of nearly 2 million dollars.
On 24 and 25 July Negro rioting broke out in the northern New York
cornniunity of Rochester. Refore the National Guard could restore
order four persons had been killed, 3jo were injured, 976 were arrested
and 204 places of business were damged and looted at a cost to the
community of between 2 and 3 million dollars.
On 2, 3 and 4 August Negroes rioted in Jersey City, New Jersey-
another northern mctropolitan area-and bcfore peace was restored
46 persons were injured, 65 arrested and 71 places of business damaged
and looted at a cost to the community estimated at three hundred
thousand dollars.
F~om 28 August until 30 August rioting ragedthroughou ie Negro
districts of Philadelphia, during which 34r persans ulere injured in the
fighting,774 were arrested and 225 places of business were damaged and
Asdescnbed in rg6r U.S.C.C.R.R., Boo5. pp.39-4I.
2 TheChicago Commission onHumanRelations estimated thatit costs'S1.8oo.000
in police protection "to keep the free ofuncontrolled (race),rioting':.Veyl,
N., The Negro in American Civilizati(19601p. 307. . .., . ) _450 SOUTH UTST AFRIC.4
looted at a cost to the community of more than 3 million dollars. The
cost involved in maintaining riot policc to cordon off Negro areas for
days and for rushing in National Guard units isnot known l.
32. As faras Respondent is au7are, no attempt has been made to esti-
matethe material and human costs involved in the Federal Government's
programme of integration in the face of iVhite resistance. An indication
of the magnitude of such costs is the fact that the Federal Government
spent $4,522,964 in order to secure the admission in 1962 of one Negro
student into the student body of the University of hlississippi: 14,000
troops, including the Army National Guard, the Air Force, the Rlilitary
Air Transport Service and United States hlarshals were used to effect
the integration. Two persons were killed and hundreds injured in the
protracted fighting that ensued I. Yet, at the time of writing, no Negroes
are enrolled at the University of Mississippi.
33. The above, then, presents a brief picture of some aspects of the
irnplementatiori of the United States Governnient's civil rights policy,
and of the effects thereof. Respondent submits that it has been çhown
that, on the one hand, governmental action in the United States over a
period of many years has not been successful in ending discrimination
against Negroes, or even in bringing the end visibly nearer; while on the
other hand the detrimental results of the Govemment's policy have been
enormous.
In tIie light of the aforegoing, it isnot surprising to find that there is
iiideed 110 weight of authority in favour of Applicants' thesis zbout the
desirability of attempts at enforcement of integration by government
action-a matter which is dealt with in the succeeding paragraphs.
H. The Views of Authorities Quoted by Applicants
34. Some of the authorities quoted by Applicants do not appear to
hold the views ascribed to them in the unqualified form suggested by
Applicants. This is illustrafed by the following fiirtherquotations from
the works of sorne of the authors referrcd to by Applicants:
(i)J. Dean and A. Rosen :
. -
"Intergroup understanding is impeded bv ignoring individual and
group differences and treating al1 persons as though they were
alike 3."
lFor a summary of the abovefigures, videarcport in U.S.News and World Report,
14 Sep. rg64, yp. 36-41.From thereporti ,tisnotclear tonrhat extent,ifany, the
rioting referred to in the texislinked with the passing, shortly before, of a Civil
Rights Act. Some cornmentators quoted in the report said that the riots were not
essentially a race problem, Yet, according to the report, the trouble in Rochester
exploded after s routine arrestby two White policemen of a Negro chargcd rvith
being drunk; New York's riots began as a protest against the killing of a Negro
youth by a Whitc police lieutenant (whowas later cieared of criminal responsibil;ty)
in Jersey City the riots began after a routine arreof a Negro wornan fordrunken
brawling; and in PhiladeIphia rioting ùegan soon alter a routine police attempt to
remove a Negro woman from a car that was blocking traffic at an intersection.The
fact that incidentssuch asthese could spark off rioting is indicative that a tension
situation already existed.
, * IV, p. 308, footnoteI. I
Dean, 1.P. and Rosen,.A., A Manual ofIntergvoupReJations (1955)p.. 19. REJOINDER OF SOUTH AFRICA 43
". .. but genuinely equal treatment cornes from recognizing real
ethnic-group differences, so that each individual can be understood
in the context of his own ethnic traditions and experiences '."
"We do not mean that the leaders should proceed rigidly, ignoring
individual and group variations in readincss to change 2."
(ii)G. Saenger 3:
"Needleçs to Say, existing laws may bc circiimvented or not en-
forced even where adequate macliinery cxists. In New York State,
for example, discriniinatory advertising was forbidden by law in
1943. Since that tirne resort places advertising in the New York
newspapers simply substituted the phrase 'near churches' for the
outlawed phrase 'restriçted clientele'. iV11ile Nenr York State pos-
sesçes a law which forbids discrimination in higher education it
lias been singularly ineffective. There have been only three com-
plaints made to the enforcing agency +."
(iii)H. Ulumer 5, witti reference, inter alin, to the statement quoted
by Applicants:
"The above policy principles-ven as principles-are crude and
require refinement and qualification 6."
(iv) 12.BI.Williams, Jnr., and RI.W. Ryan ':
"Aclear definition of lawandpolicy by legitimate socialauthorities
may reinfmce willingness to conform to the requirements of new
situations . . . Important social changes generally do not occur
wilhout someresislanceand friclion #." (Italicç added.)
(v) E. A..Suchman et RI. 9:
"From the point of view of practical application, the i~nplications
of these propositions for the practitioner should be taken merely
as suggestive. These suggestions moçt be viewed with estreme
care and only as general guide lines. Only in combination with
çpecific knotvledge of a local coniniunity setting could they be
used as directives for action Io."
(vi)hl. Tumin Il, writing about the enthusiasm for the use of legal
restraintsagainst discrimination :
"This enthusiasm has been tempered, inmore sober appraisals, by
the realization that no rnatter how temporarily effective legal
restraints may prove, one cannot hope to develop conlinuous and
1 Dean, J. P. and Rosen. A.,ArlIanua1 ofInlevgroup Relations (1955) p~.21.
2 Ibid.,p. 88.
IV, p. 308, footnote 2 and 1).309, footnote 1.
Saenger, G., The Social Psy~hology of Prejudice (1953). p. 270.
5 IV, p. 308. footnote 3.
"Research on Racial Relations: United States of America", International Social
ScieitceBulletin, Vol. X, So. 3 (1358). p. 433.
IV, p. 308, footnote 4.
Williams, K. M. (Jnr.)and Ryan. BI.W.. Sclroolsin Transition :Cornmunity Ex
periences in Desegregation (~ggq!,p. 247.
9 IV, p. 308, foatnote 5.
10 Suchman,tE..A. et cal.,Desegregation: Some Propositions and ~esearch S.g.es-
tions (1358), p.5.
IV, p. 309, footnote 2 and p. 310, footnate 2. .b . .452 SOUTH \\'ES T FRICA
stable traditions of non-discrimination through legal instruments
alone l."
(vii) R. M. \iTillianis,Jnr. 2,states that-
"EtIlle esistence of laws protecting the rights of minorities and
court decisions upholding thesc laws tend, in the long run, to
decrease conflict over the rights involved 3."
"Whenever there is sttficie~tt flexibility in pzcblicattitudes, the
abolition of legal discriminations rtnddiçabjlities in the long riln
will reduce hostility and conflict 4." (Italics added.)
(viii) Dr. Gordon Allport 5:
"To sum up: \hile it is true that naanyAmericanswill not obey
laws of whiclathey disapprouestrongly, most of tl!erii deep inside
their consciences do approve civil rights and antidiscrinsination
legislatiow 6." (Italicsadded.)
"\\Tehave said that laws will, by and large, be obeyed if they are
in line wifla 01~8'csonscience, and if they are tactfztllyadministered.
\Ve should add an additional condition: they slmrtid?zotbe felt to
be iniposeil by an alieit wiEl ., . Prejudices are not Iikely to be
reduced by laws which, in the manner of their passing, arouse other
prejudices '."(Italics added.)
(ix) K. B. Clark
"Within thepresent arnbiguities and conflicts of social theory; it is
difficult for the conteniporary social scientist to take a clear stand
against the point of view held hy some practical men that 'one
must change nze~a'sheurts before one ca?t change lheir social 6e-
hviozcr' 9." (Italics added.)
(x) M. Deutsch ID:
"To determine if tlie passive, legally based acquiescence to de-
segration by some individusls actually is a mask for persona1
acceptance of desegregation would be an extremely iniportant task
in understanding the undcrlying dynamics of the individual
'leader's' or influential person's role in social change. I would feel
that it would be extremely difficult to impose desegregation by
normative legai processes unless there were ut leasf tkis tvpe of
ambivalenceon thepart of a certainproporticmof commzcltityleaders
and decision-makers.A variable such as this might play a significant
l Tumin, M. M., Desagvegation: Resistance and Readiness (1958j,p. 84.
IV, p. 309, footnote3.
Williams, R. M. (Jnr.). The Heductio?~of I~~tergroupTenséolis: A survey of
Research on Problems of Ethnic, Racial, and Religious Group Relations (1947).
PP 73-74.
Ibrd.,p. 74.
IV, pp, 309-310, footnote I;p. 310 andp. 312, footnote r.
Allport, G. W., The Nature of Prejudice (1954)~p.472-
' Ibid.. p. 473.
IV, p. 3IO.footnote 3,
Clark, K. R.(Issue Author), "Desegregation: An Appraisal of the Evidence",
The Joüvnaf of Social Issues. Vol. IX,No. 4 (1953), p. 72.
'OIV, p.310, footnote4. REJOISDER OF SOUTH AFRICA 453 .
role in explaining the absence or presence of violence in one or
another comniunity l." (Italics added.)
35. The above-quoted vieds of authors cited by Applicants have al1
been expressed with reference to the situation in the United States 2,
where, as has been pointed out earlier 3, conditions are ideal for the
enforcement of anti-discrimination legislaiion.
Apart from these authors, Applicants have also quoted authors com-
menting on racial integration in Canada, New Seaiand and Great Brit-
ain 4. But Applicants have made no attempt to show that the basic facts
of the racial situation in these countries are comparable with the facts of
the situation existing in South West Africa. In fact they are not. A
reference to the population figures in each of these countries is sufficient
to show that the composition of the racial groups there is fundamentally
different froni the situation existing in South \Vest Alrica. Thus, in
Canada, Xegroes forrn only about 0.2 per cent. of the population, Euro-
peans about 96.5 per cent. and other groups 3 per cent. In Kew Zealand,
the Maoris constitute but 4 per cent. of the total population, Europeans
about 90.5 per cent.and other groups 5.5 per cenL6
In passing it may also be noted that many New Zealanders have been '
reported to feel that attempts to force the Pace of iiitegration will succeed
merely in accentuating race-consciousness, while some Maoris feel that .
treasured traditions and soniething of their distinctive identity as a race
niay suffer if too many controk are brought to bear, where basically
continued tolerance is the rcal çocial requirement '.
In Great Uritain, the non-IfThite section of the population foms lcss
than 2 per cent. of the total population 8.The racial situation in Great
Uritain has been more fully referred to elsewhere in this Rejoinder 9.
1. The Viewsof Authorities and Commentators Opposedto those
Quotedby Applicants
36. Respondent does not dispiitethe suggested premise of Applicants'
argument, \riz., that attitudes are learned and can be unleamed. But in
so far as Applicants' argument contains the furtlier, implied generaliza-
tion that al1or any attitudes can be unlearned with equd facility, what-
ever the setting may be in which they occur, it loses sight of the fact that
attitude modifiability is determined by a number of factors,not the le~st
of which is the group affiliations of the individual concerned. This is
illustrated by the following findings of Professors Berelson and Steiner:
"Given consistent support from historical, parental, group, and
strata characteristics [opinions, attitudes and beliefs), are unlikely
l Deutsch, M., "Some Perspectives on Desegregation Research". The Role the
Social Sciences in Dcsegregata:A Symposium. pp. 4-6at p.6.
The same applies to M. Berger. IV. p. 310, footnot5, A. Rose. ibid., 311~
footnote 5 and C. 8.Nixon, ibid. p. 311.footnote 6.
3 Videparas. 5-10,supra,
' IV,pp. 310-311.
' United Nativns Demographic Ycarbook 1963. Special Topic:Pofiulation Cemus
Slafistics II,Fifteenth Issue(1964..31 1.
Ibid.,p.317.
According toa report inThe Times, 7 Dec. 1962.
VidesChap. III, Annex XV, supra.o in The Star, 13 Oct.1964. SOUTH WEST AFRlCA
to change at al]. If, for example, histoncal conditions remain the
same; if the parents have felt strongly and harmoniously about a
particular matter and instilled the appropriate belief early and
thoroughly; if strata characteristics in later life are consistent with
the position; if the primary groups surrounding the person agree on
the matter-then it is hardly too much to say that the [opinions,
attitudesand beliefs] simply will not change l."(Italics added.)
37. With regard to Applicants' contention that legislation can be used
to change attitudes, the ineffectiveness of legislation thüt does not coin-
cide with the mores of the people hüs been recognized by various author-
ities. Berelson and Steiner summarize conteniporary findings as follows:
"Social changes, however large, that are desired by the people
involved can be assimilated with little social disruption. Changes
that are not desired, even quite çmall ones, can be put into effect
onlyutconsiderablesocialarzdfiersonalcost . . Socialchangesimposed
ona societyfromoutsideareesfieciallylikely not to beacceflfed. Forced
change from the outside tends to result in overt cornpliance but
coziertresistance =." [Italicsadded.)
38. Conteniporary science leaves little doubt that human groups arc
animated by what are frequently termed in-group preferences and out-
group aversion; a recent summary of research findings states unequivo-
cally that in-group preference, accompanied by a tendency to prejudge
or stereotype members of out-groups, is universal, existing in every kirid
of human society 3.Xo authority is required for the proposition that the
fact of permanent racial difference is a real, enduring and socially im-
portant fact. A situation conceived as threatening the survival of one's
own group (e.g., economic or socio-cultural competition) gives rise to
an attitude of persistent and resistent national hostility. Thus, attitudes
arising from racial and cultural differences between groups are particu-
larly strong, deep-seated and resistant to change. This isillustrated by
the following comrnents on the situation in the United States:
"It is true that the problems of assimilation presented by the
great floods of immigrants from Europe have become Iargely re-
solved with time, leaving only lirnited and local adjustments to run
their course. Wherethe color Eineêsinvolved, there is still stuhborn
resistanceto complefeassimilation ..."
"We are peoples whose whoiecultural systems aregeared to change,
but tlrere arealsolimits to thechangeswhichcan be made wilhout de-
struction ofth essentialsofozlrcuZturaE ways ofZife 4." (Italics added.)
". ..therc is this significant difference which we shall stress, that in
regard to thecoloredminorities,amlganration isuiolentlydenied them,
while in regard to al1 the other minorities, it is welcomed as a long-
run process 5." (Italics added.)
BereIson. B. and Steiner, G. A.,huma^ Behavior: An Inventory of Scientific
Findings (1964),p. 575.
Berelson and Steiner, op.cit.pp. 613-614.
Suchman, E. A. et. alDesegregation:Some Propositions and Research Sugges-
tions (19581 ,. 57.
' Walter. P. A. F. (Jr.).Race and Culture Relations (1952), pp. 408 and 412
respectivey.
Myrdal, G..An Amevican Dilemma :TheNegro hoblem andModernDemocracy
(19441,P. 52.footnote a. REJOINDER OF SOUTH AFRICA 455
"While amalgamation is considered the approved way of solving
the proble~n of olir foreign white immigrant groups, Americans are
opposed to the assimilation of the 'racial' minorities, Negroes, Orien-
tais, biexicans, and Indians. They insist on keeping their racial
minorities separate l."
39. Applicants' contention that discriminatory behaviour may be
modified by the enforcement of anti-discriminatory legislation is no
doubt true to tlie extent that an individual can be forced to behave in
a prescribed manner, that hc can be forced to do almost anything. But
what Applicants omitted even to mention, are the indisputably harmful
effects of coercion, when the result sought to be achieved is opposed to the
habitually accepted norms and traditional values of the society. Changes
of this nature cannot be brought about, even by force, without resistance,
and resistance results in disorganization :
"The more a social change threatens or appears to threaten the
traditionalvaluesof the society, thegreater the resistancetothaatchanga
and the greaterits utlefidant costin social und personal dz'sorganiza-
tion =." (ltalics added.)
\Frhere there are actuai or potential conflicts between racial or cultural
groups within a nation, each national group Iooks increasingly to its
own interna1 unity 3. A clash of cultural standards tends to weaken the
hold of both cultures on individuals 4;conflict between habitua1 norms and
requirements of new-life situations leaves the individual confused and
disturbed 5. When the old concept of rights and duties is broken down,
the results are class friction and pathological relationships 6; a change
in the traditional way of life leads to friction and insecurity, to social
tençions and diçruptions 7. Cultural conflict operates to produce crime,
because it creates confusion in standards of conduct and in ernotional
balance for some individuals and bccause it results in hatred and strife
between nations and between groups within a nation This has been
proved by experiencc in the United States; thus, within the zones occu-
pied separately by various cultural and racial groups, the crime rate is
relatively low, but where zones overlap zones of other cultural or~acial
gioups, places where cultiiral conflict is most likelp to be acute, the rate
of crime and delinquency is highest 9.Aioreover :". . .Along the bounda- ' '
ries of change, race conflict frequently explodes into violence" 'O.
40. Enforced assimilation as a solution to racial problems has been
rejected in the following terrns by Paul A. F. Walter, writing in 1952:
"As a general ruic, enforced assimilation becornes arrested çh6it
1 Saenger, G.. The Social Psycholoky ofPrejudice (1953)p. . 162.
Berelson. B. and Steiner, G. A., Human Behavior: An Inventory of Scientific
Findings (19641,p..614.
Walter. P. A. F. (Jr.), Race and Culture Relations (1g5z) p. 408.
' lbid., p.440. . . c
Ciilin, J. L., Social Pathology (Revised ed., 1939). p620. ' .,: - L<.<+
Ibid., pp. 559-570. . < ,.,..
'7Ibid,, p.'564. I t . . I' ,.:? r. -
Gillin.J. L., Criminology and Peaology (3rd ed., 1945). pp. 199-200 ;,.."'":"'?
Sutherland, E. H. and Cresîey, D. R., Prin~iples of'Criminology (i955), '}!147 '*
and ?Valter..T)..A.F: (Jr.).Race and Culture Relations (r952)p,..435:~
'Io,%%''éW y..,Tke-Negro in ~merican-Ciuili~alian (rg60): p.~307.'citing as an.ek-
ample Chicago' i9s57 Calumet Parkriots, meritioned in pGa.30, i;u@a. , . : ,:L-,4 SOUTH WEST AFRlCA
of complete amalgamrition and leaves vestiges of old cultural and
racial distinctions,often crystallized into classand caste systems '."
"While thus complete assimilation may be considered, as it 1sby
some, aç the ultimate ansiver to al1 ethnic problems either in a re-
stricted area or globally, the history oj such problenzsindicates tkat
lhisis nol true?." (Itaiics added.)
More recently, A. J. Gregor bas said:
"ive can generalize (bearing in mind exceptions which can con-
ceivably result frorn singular socio-political circumstances) that
where two peoples, marked by gross phpsical dissimilarities, make
contact, theaftempt atassinrilutionis invuriublymet with tensiolzsand
disharmonieswhich itis almostbeyondthe power 01 mertto resolve 3."
(Italics added.)
D. Purves States:
"Therc is ample evidence to indjcate that socid instnbili is[yneui-
table zoiheneverattenhptsare made to crente millti-racial cognmunities,
and a number of apparently insoluble situations alreadp exist in
Africa and the United States. In view of the instinctive.character
of the antagonisms inherent in the multi-racial community, there
appcar to be good grounds for preventing the establishment of
communities of this kind in the future and for attempting to solve
the problem of the existing communities by resolving them into
separate societies on a racial basis. However harsh the applicatipn
of such policies may appear to be, they do provide the possibiiity
of social harmony and lriendly cornpetition between national grouqs
in the future-the alternatives are flevmanetztinstability and exploz-
tation of oneracialgroup by the otherindefinitely$roEo~zge d." (Italics
added.)
Prof. Max Lamberty 6:
"The 'integration' can be a greater evil than the 'segregation'
when it is not accepted by al1 parties concerned, when it must be
achieved not by free willbut by coercion (Translation.)
41. A number of authorities and comment:itors dealing specifically
with the racial situation in the United States in recent years have been
outspoken in their criticism ofenforced integration as a method of re-
solving racial discrimination in that country. They consider that the
Federai Government's policy instead of substantiallp changing basic
attitudes of racial prejudice and racial discrimination, has engendered a
hardening and intensification of such attitudes, leading often to increased
Ibid.. p. 406.F. (Jr.), Race and Culture Relations (1952)55..
'Gregor, A. J.. "On the Natureof Prejudice", Eugenics Rcview. Vol. LI1 (Apr.
1960-]an.rq61).pp. 217-224 at p.21g.
' Vide Chap. III. supra.
5 Purves. D., "The Evolutionary Basis of Race Consciousneçs", Mankind
Quarterly (July 1960)Vol. 1.No. I,pp. 51-54 at p. 54.
Doctor in Social Sciences; Professor at the I-inger Instituut voor Overzeese
Gebieden. Antwerp; Professor st the Koninklijke Militaire Schqol, Brussels.
'Lsmberty. M., "Wat betekent pluralisme?" DL Vlaamse Gids, No. 12 (Dec.
1963)p .p. 798-81 2t p.811. ' KEJOINDER OF SOUTH AFKlCA 457
racial friction and violence '. As to the former aspect of the American
situation, Professor C. Vnnn Woodward has commented:
"It is true tliat the present Court has consistently held against
segregation. But Aniericans have deveIoped over the years a curious
usageof theEawas an appeasen~entof moralistsand reformers. Given
suficient pressure for a law that embodies reputable and popular
moral values, the electorate will go to great lengths to gratify the
reformers. They urill even go so far aç to unliniber the cumbersome
machine- of Constitutional amendment. But having done this
rnuch,they are inclined to regard it as rathertediousof theveformers
tu i~sist zifiatliteral enforcement. Under thesc circumstances the
new law is likely to become the sztbjectof pious reference,more
hono~edin the breacia Ihan in the observance,a proof of excellent in-
tentions rather than the means of fulfilling them *."(Italics added.)
42. The resistance of the White population to the enforcement of
residential integration in practice affords cogent support for the above
comment. One author has stated:
"The experience of Chicago shoxr~sthat displacement of whites
by Negroes can be reversed in itsearly stages. However, after Negro
population reaches a certain level, both the flight of white residents
and the influx of colored gain momentum andbecomeirreversibb . ..
Sociologists write about the 'tippoint' in the racially mised neigh-
borhood. Essentially, this is the point of no return. It defines that
degree of Negro concentration which makes the process of white
displacement irreversible. This tip point generally is in the range
of 10% to 20:/, Negro 3."(Italicsadded.)
Another author recently reported that irrespective of verbal assurances
of tolerance,
". ..the mere presence of a Negro in a white residential neighbor-
hood unleashesleurs and halredsof the most elemental sort, and leads
almost \vithout exception to an exodus of the white residents *".
([talics added.)
43. The effect of current government policy iii the United States on
racial attitudes generally is descrihed with striking impact in the follow-
ing recent opinion:
". ..the No~th is finally bcginning to face the reality of race. In
the process, itisdiscoveriltganimosities and prejudicesthat had been
hidden in the recessesof tltesoztl... revealinga degreeof anti-Negro
$rejaidiceand hatredthat srrrprisedmen the most so,bhisficatedobser-
vers. After interviewing whites from coast to coast, for example, the
journalist Steward Alsop and the public opinion espert Oliver Quayle
reported in the Satitrday Eveni~zgPost that 'Th white North is no
more ready toaccefitgenuine integrutionand real racial eqz~ality than
and 121,Respondent must not betakenenioasubscribe in evcry respetothe views of
al1the authors quoted in the textAs ivill be noticed. some hold more extremiatic
views,while others are more restrained in their commentThe object of Respond-
ent's quotations ito show that varying shadeç and degrees of opinion dexist.
* Vann Xoodward. C.. The StrangeCaree~of Jim Crow (1957)p.p. 171-17'-
Weyl, 9..The Negro iitAmericun CiviIirafiun(1960)p.p. 307 and 308-
' Silberman, C. E..CrisisinRlack and White (1964)p.. 43.458 SOUTH WEST AFRlCA
the deep South'. So strong and widespread \vas the prejudice they
found that Alsop and Quayle concluded that for the moment, at
least 'thereis simply no way lo reconcilethe aspirations of the new
generation of Negroesfor real iategration and true eqttality with the
resistanceto thoseas+irationsof themajority of wkitss'. Pollster Louis
Harris, who sent interviewers al1 over the country for Newsweek,
reached much the same conclusion. He found that 'Whites, North
and South, do not want tlie Negro Iiving nest door'; that 'Most
whites fear and shun social contact with Negroes'; and that 'the
white image of the Negro is.. .an implausible and contradictory
caricature. . .cunning, lewd, flashy, strong, fearless, inimoral and
vicious'l." (Italics added.)
44. \Vhite resistance to the enforcement of anti-discriminatory legis-
lation in the United States, with its attendant harmful consequences, is
reflected in the following comment on the compulsory desegregation of
schools in the South:
"After five years of practically no progress in mising the schools
of the Deep South, the Eisenhoiver Administration and the mode-
rates of both parties realized the futil;@ of using military force lo
chattgethemind and moresof theSoztth. Roth sides searched for face-
saving formtilas and compromises that might calm thestormsof race
and seclionalhate. Five years afterthe Supreme Court decision.the
theory that the South could be dragged, cajoled and coerced into
school desegregation seemed dubious in the extreme. The deep-
seatednature of Southern op#osition lo rnixedschoolswas finally be-
coming apparent to the North. After Little Rock, it secmecl clear
that the use oj the naked power of the Fedeval Government to enforce
desegregation, whether in the form of military occupation or whole-
sale contempt proceedings in Federal courts, would merelyntake the
white Sozrthmoreszrlien,more rebddlaus,mo/z obstinateand less ruid-
Lingto com$romise=." (1talics added.)
"What appears as softening of resistance to d~e~regation in the
South may merely be expediency. It reflects a recognition by the
forces of resistance that it is easier andcheaper to co.mp!y symboli-
cally by accepting a few 'exceptional' Kegroes in White institutions
than it is to resist symbolically by fighting federal pressure to the
bitter end 3."
45. Some observers have even condemned the Federal Government's
policy as having done more harni than good to racial harmony in the
United States. Thus, Carleton Putnam reflects on the school desegrega-
tion decision as follows:
"Irldeed, there now seems little doubt that the court's recent
decision has selbackthecauseof theNegroin theSouth bya generation.
He may force his way into white schools, but he will not force his
way into white hearts nor earn the respect he seeks. What evolution
weiasslowly and wisely ackieva'ngr,evolutionhs now arrested, and the
trailof bitfernesswill lead fat4."
l Silberman, op.cat.p. 8.
Weyl, N., The Negro in American Civilization(r960)pp. 289 and 290.
' Killian. L. and GrigC.,Racial Crisiin Amerira Leadership in Conflic(1964).
p "4,
*Putnam. C., Race and Reason :A YankeeView (1961),p.g. REJOISDER OF SOUTH AFRICA 459
More recently, in 1964, sl~rtiy afterthe waves of violence which followed
upon the passage of the 1964 Civil Rights Act, a number of United
States' Senators and Iiepresentatives were interviewed on the situation '.
Some supportcd the Government's legislative programme; others ex-
pressed the opinion that it was not the cwiplcte answer to the racial
problem; and still others condenined it: Of the latter group, Respondent
quotes the following:
Se,iator Richard B. Russell, Georgia:
"The New York race riots prove the ialacy of a principal argu-
ment that was advanced for passage of the so-called Civil Rights
bili.During the long weeks that the bill was before the Senate, the
country was assured over and over again by advocates of the
measure that its passage was necessary to prevent violence and de-
monstrations.
ive now see the wanton destruction of life,limb and property in
Harlem and liochester. The fact that the racial outbreaks occurred
in the State having the greatest array of so-called civil-rights laws
and the most ardent political champions of the Negro is telling evi-
dence that legiskation of thitype is more likely to harm than to
the cause of $eaw, order and good race relations*." (Italicsadded.)
Senator Johlz L. JlcClellan, Arkansas :
"The Civil Rights law as enacted cannot at al1 be the complete
answer to the civil-rights issue in this country. It is calculated to
prouoke, and isprovoking, an altitudetht is con$a?yto th conceptaf
hiaging about an understading and karnrony betwem the races.
You can't, just hy legislation, change the nature of a people or of
a race from tlieir present status to one far advanced 3." (Italics
added.)
Senator Herman E. Talmadge, Georgia (in answer to the question: "1s
CivilRiglits the answer to the race problem?"):
"Certainly not. ifby 'civilrights' you rnean forcelegislation telling
people hou. they should conduct their private affairs and private
business. Iflegislationof this type merethe answer to this problem, cer-
tainly States which have an abundance of it on thir law books wodd
molbehauing the trouhlethey are rtowkaving. The real civil rights of al]
Arnericans, of course, are embodied in the Bill of Rights, the Thir-
teenth and Fourteenth Amendments to the Constitution. They are
now and have always been enforceable in al1the courts throughout
the land, bath federal and State.
The race problern, which really concerns man's relation to his
.feIlow man, will be resolved only by a transformation of mental
attitudes and self-improvement on the part of al1people, white and
Negro. For instance, job opportunities, for which we now hav~ so
much demand, corne with çkills and talents which can be attained
only by hard work and self-improvement .., +" (Italicç added.)
Smator Frank Carlson, Kansas (Question: "What is your opinion now
of Civil Rights as the answer to the race problem?"):
U.S.News and ~oild Rtport, 10 Aug. 1~6~. 26-32. .
*Ibid. p.27.
Ibid., p28. -
Ibid.. p.29.460 SOUTH WEST AFRICA
"I've felt al1aiong that legislation would not resolve this problem,
which, after all, gets to be a matter of the heart and mind. Solution
is going to be a long process l."
Senator Bourke B. HickenEoo$er,Iowa (ansivering the question, ". . .
would you Say that Civil Rights is the answer to the race problem
now?"):
"No, 1 \vouldn't. Certain civil-rights guarantees are essential to
equality of treatment. But it's been manifest that the protection of
guarantee of rights is not the answer '."
Refiresentatiwe Horace R. Kornegay, North Carolinlz (Question: "Do
Civil lii hts Laws provide the answer to race problerns-North and
~outh?'ij:
"It would certainly appear to me that they do not. The trouble
that has conie to the Northern cities in Negro comrnunities is indi-
cative of the fact that racial $euce cnn~wtbe broughtabout by liti-
galion 2." (Italics added.)
46. Finally, Respondent quotes the following comment on the results
of the United States Civil Rights policy, contained in the recent con-
clusion of two niajor research specialists:
"The danger that America faces is that the desegregation decision
of 1954 may prove to be not the beginning of the resolution of 'a
struggle in the hearts and minds of white Americans' but the opening
battleof a race mar .. .
The prospect is dismal; the need for a solution to the crisi ist
race relations is dosfierate3."
J. Conclusion
47. It is not for Respondent to takc part in the controversy as to
whether the policy at present being pursued in the United States should
be persisted with, orwhether the approach or techniques involved therein
should be altered, or whether it will eventually bring success or not. For
the purposes of this case, the important points are that a serious contro-
versy does exist among students of the problem; tliat tliere lias as yet
been no proof that the policy w-il1succeed and that if it does, it willdear-
ly take a long time and the cost involved therein will be enormous,,not
only in material terms but also in respect of moral values-and al1th15 in
circumstances so rnuch more favourable for integration tlian in South
West Africa. How, then, can it be said that, in not following the United
States precept in South West Airica, and in taking account of groupreac-
tions in its endeavour to establish harmonious relations, the soundness of
Respondent's approach "is refuted by the ovenvhelming weight of scien-
tificauthority" +?
48. If the policy suggested by Applicants produces resistance, terision
l U.S. News and Report, op:~;f:p. 30.
Ibid.,p.32. '
' Killian, L. and Grigg, C.,Racial Crisis in Ameréca: Leadership in Conflict
(ig64)p,p. 126and 130:Vide also thecomment of the Commission onCivil Rigpts in
its 1963 Report, quoted inpara.24, supra.
IV, p. 307. . . REJOlNDER OF SOUTH AFRICA 461
and violence in the favourable circumstances existing in the United
States, the threat of utter social disorganization inSouth West Africa as
the resultof such a policy is surely self-evident. It appearto Respondent
that itis difficult to conceive oa policy more calculated and more apt to
endanger the present well-being and social progress of the inhabitants of
South \17estAfricathan the one advocated by Applicants. Only a due re-
gard. for the disposition to group separation has converted life in the
Territory from one of continiial friction and bloodshed, as in compara-
tively recent historical times, toone of harmonious development towards
peaceful and friendly CO-existence.Reçpondent considers that to avoid
the threat of grievous social disorder and to advance the cause of har-
monious relations, the responsible administration of the Territory de-
mands that the existence of real, substantial and enduring differences
between the population groups, and the influence those differences
exercise on inter-group relations,shonld be duly recognized in the formu-
lation of apolicy best calculated to promote to the utmost the well-being
and progress ofal1the inhabitants. CHAPTER XII
CONCLUSION TO SECTION E
I. In the preceding chapters of this section Respondent dealt with the
rnaterial adduced by Applicants in their attempt at establishing, as a
fact, that the princ@les of Respondent's policies by themselves fail to
"promote to the utmost the material and moral well-being and social
progress of the inhabitants of the territory" j.
The legal basisof thisfactualissue is an essentially straightforward one,
viz., the question whether Respondent, in deciding upon and progres-
sively putting into effect its impugned policy of separate development, is
bona fidepursuing the prescribed objective, cited above, ielative to al1the
inhabitants of South West Afnca 2.In dealing with their charge of mala
fides* Applicants have, however, unnecessarily comylicated the matter
by their purported reliance upon unformulated curent "norms and
standards", said to be "universally accepted". On analysis this appeared
to be merely a particular method of attempting to discharge the onus of
establishing the bad faith alleged by them-although Applicants did not
make a real and consistent effort to ,treat the material offered by them in
the light of such mus.
Uy reason of their purported reliance on "norms and standards", as
well as by the very nature of the present dispute, Applicants ranged far
and wide in their search formatenal which could be usefdy employed
in these proceedings. As the previous chapters will have demonstrated,
Respondent did not heçitate to follow Applicants ont0 terrains with
which, in the ordinary course of .events, the legal process has but little
contact.
2. It is submitted that the net effect of the material thus gathered
from diverse sources and placed before the Court, was to show the unten-
ability of Applicants' case: the exposition of Respondent's policies in the
above chapters, relative to erroneouç assertions, distortions, misconcep-
tions, points ofcnticism, weighing of advantages and disadvantages, and
the like, served to confim Respondent's complete good faith in regard to
its administration of South West Africa; the account of events and exhib-
ited tendencies in a nümber of other countries and temtories over-
whelmingly establiçhed the defects of, and the dangers of utter disaster
inherent in, the only real alternative to separate development, viz.,
attempted integration; and the discussion of the views of scientists,
politicians and others showed the existence of a subçtantial body of
opinion which accords with the underlying premises of Respondent's
policies.In the result Respondent contends that Applicants have failed
entirely to establish that, in deciding upon and pursuing the broad
approach, principles, objectives and methods involved in its policy of
separate developrnent-which is the essence of the matter-Respondent
was in any way imbued with bad faith, as alleged or at all.
1 Art.2. para.2.of the Mandate for GermanSouth-\\'estAfrica.
Vide Chap. 1,para.I,supa. REJOIXDER OF ÇOUTH AFRICA
q63
3,. In thepresent section Respondent dealt with the general principles
of its policies. The ensuing sections will be devoted to more detailed
aspects of the application thereof in specificspheres, commencing with
that of Government and Citizenship. Annex to Section E
A. INTRODUCTORY
I. Itwill be recalIed that in Part 4 ofChapter IV.B.3.c. of the Keply
Applicants, under the heading "Relevant Historical Reçumé" 2,purport
to show:
(a) that South Africa was already effectively occupied by non-iVliites
before Europeans began to settle in the country;
(6) that the Europeans proceeded to take occupation of non-White
land;
(c) that the Voortrekkers, king "an exceptionally coloiir-conscious
people", established "a caste system" 3,which was maintained at
and after the unification of South Africa; and
(d) that as a result of the influx through the years of Natives into
White areas, a multi-racial society in South Africa, as in South
West Africa, is a fact.
Respondent has already dealt with the last aspect ',and it therefore
remains to consider Applicants' effort "to set straight the historic
record" regarding the first three aspects. As has been pointed out l,
references to historical events in South Africa also occur in Annex 3 to
the Reply, and in the succeeding paragraphs Respondent will, where
necessary, aisorefer to the relevant portions of the said Annex.
B. THE INHABITANTS OF SOUTH AFRICA CIKCA 1652
2. With reference to the first European settlement in South Africa,
Ap- -cants state that-
"[clontrary to Respondent's account that before the whites began'
to settle in the seventeentli century Southern Africa was 'nearly
empty', the eastern half of the country \vas effectively occupied by
Bantu-speaking farming tribes, and the western half \vas occupied
more thinly, but effectively, in relation to theireconomy, by hunting
and herding peoples whom the whites were to cal1 Bushmen and
Hottentots '".
In support of the latter portion of this statement Applicants cite
Schapera 6and Marais 7, neithcr of whom, however, suggcsts that the
western half of South Africa was ever occupied effectively by the Bush-
men orthe Hottentots.
1 Videsec.E, Chap.Y, para. 15,supra.
'IV,p. 459.
'Ibid.p..460.
Videsec.E, Chap. 5'. paras. 16-35. supra.
IV, p.458.
6Schapera, I., The KhoisanPeoples ofSouth Africa (1960).
Marais. J.S., The Cape Colouved People 1652-1937(1939). REJOINDER OF SOUTH AFRICA 465
3. It is geiierally accepted that the Uushmen were the original in-
habitants of South Africa-at least in modern times '. At one stage or
another they must have roamed in thinly scattered clans over large
portions of the areas at present comprising the Cape Province, Natal
and the Orange Free State. ilrith the advent of the Hottentots and the
Bantu, however, the Bushmen \r7ereto a large extent exterminated or
driven to the mountains of the interior *. Schapera, who is cited by
AppIicants, states in this regard :
"[BJy the time when Europcan contact with South Africa wasfirst
established, the Bushmen in the Cape had already been reduced to
living in isolated groups scattcred about among thc more numerous
Hottentots 3."
The Hottentots rnigrated southwards along the west coast of Africa,
and, having reached the Cape peninsula, proceeded along the east coast
of the Cape. They never wntured into the vast interior of the Cape, and
when the first Dutch settlement \vas established at the Cape in 1652 they
were to be found only in the coastnl areas between the sea and the moun-
tainstotheeast, and especially to the west,of the peninsula 4.Even these
areas were bÿ no means densely populated, and vast open spaces were
found between the variouç tribes5. Theal, a recognized historian,
estirnates the total Hottentot population of the Cape Province (and
consequently of South Afnca) circa 1650 at 50,000 at the most 6,while
Sto\v is of thc opinioii that ". .. the total Hottentot race did not esceed
thirty-five or forty thousand people" ?.
It is,for various reasons impossible to estimate the number of Rush-
men in southcrn Africa round about 1652. Historians seem to agree,
however, that their number was less than that of the Hottentots. There
Gan consequciitly be no question, even if due allowance is made for
their nomadiç habits, of the Uushmen and the Hottentots having
Effectively occupied the western half of South Africa at the time of the
arriva1 of the Dutch settlers.
4. Applicants relv on an article by Monica iViIson 9 in support of their
statement that the Bantu occupied the eastern half of South Africa before
the Europea~is began to settle at tlic Cape. In the said article the authoress
evamined the early history of the Transkei and Ciskei, and came to the
conclusion that cir~a1686 the Bantu occupied the coastal belt and the
areas adjacent to this belt north of the Buffalo River (East London) 'O.
She certainly doeç not suggest that the interior of either the Eastern
1 Vide, cg.. Stoiv,C. \TT.,The Nalivc Ruccs of South Africa(I~IO),pp. 5-6.
hlarais,op.cil.(1957), p.5; Schapera, op.cit. p,.30 and Theal, G. M.. Elhno-
grapky and Condition ofSouth Africa bejore A.D. 1505 (1922),p. 47.
' Schapera, op. cit.pp. 40-41.
Stow, op. cif.p. 236 and Theal. op.cil.pp. 88-89.
Stow. op. cit.p. 247;Le Roux, H. J., Die Toestarrd, VtrsprcidinersVwbrokke-
iing van dieHoltentotstamme in Sirid-Afrika, 1652-1713 {Unpublished Thesis,
University of Stellenbosch,1945).p. 2.
Theal, G. 31..History ad Efhnograpiryof Africa South of the Zumbesi,Vol. II
(1909) .p. EG-127.
Stow, op. cil.p,.247.
Vide Schapera, op. cit.pp. 38-39.
TVilson, M.. "The Early Historyof the Transkei and Ciskei", African Studies,
Vol. IS,No. 4 (I~sQ),pp. 167-179. .
l0 Ibid.,p. i78.466 SOUTH WEST AFRICA
Cape or Natal was inhabited. In fact, Theal, one of the sources cited by
her, narrates that a Portuguese ship-wreck party found the plateau in the
interior of the eastern Cape cornpletely uninhabited towards the end of
the sixteenth centq l.
Respondent does not dispute that Bantu were living in the coastal
areas of the Eastern Cape and Natal when Van Riebeeck (the leader
of the first Dutch settlement) arrived at the Cape. These areas, however,
by no means comprised "the eastern half" of South Africa, as \vil1
be apparent from the map attached hereto '.
It is impossible to establish withany degree of certainty to what extent
Bantu tribes had migrated intothe north-central parts of South Africa by
1652 It seenis highly improbable, however, that such tribes had migrated
further south than the upper waters of the Vaal River 3. Although no
exact calculation is possible, it would appear that al1the areas inhabited
by the various Bantu tribes comprised approximately one-eighth of the
total area of South Africa (including the protectorates).
5. Immediately on their amval the settlers came into contact with
the Hottentots. It is true, as stated by Applicants +, that the Dutch
authorities at the Cape did try tokeep the area of White settlenient apart
from the non-White races, but itis an unfounded generalization that the
authoritieç failed-
"... because the white settlerç themselves took occupation of land
previously used by Rushmen, Hottentots andAfricans, and because
the white settlers themselves became dependent on the use of
Buçhmen, Hottentot and African labour, as well as the labour of
imported slaves 5."
In a number of instructions and proclamations issued in the first decade
after the settlement, the settlers ivere instructed to treat the Hottentots
benevolently and not to punish or even pursue them in cases of theft 6.
Though it cannot be said that theçe instructions were always implicitly
obeyed, the prirnary and real cause of two so-called wars against the
Hottentots in later years, which did not involve much more than skir-
mishing, was the persistent raids of the Hottentots on the possessions,
especially cattle, of the settlers, one of which in 1653 culminated in the
murder of a herdsboy '. These raids were apparently so exasperating to
the authorities that they evenconceived the novel, if cornpletely imprac-
ticable, idea of severing the area ofWhite settlement (the Cape peninsula)
from the Hottentots by means ofû canal
As a result of the above "wars", the Hottentots retreated from the
areas immediately adjoining the peninsula. At the time, however, when
the settlers began to move away from the vicinity of the Cape, the
Hottentots were no longer in effective occupation of the areas formerly
1 Theal, G. M.,History ofAfrics South of fheZambesi, V1l(Vol. II of the Series).
(1927).pp. 327-329.
hrot reproduced.
' Vide Theal, G. M.. The Beginning of South African History (1902). p. 30.
+ IV, p-459.
Ibid. Ishould be observed that Applicants refer tono sources whatsoever.
Vide,e.g.,Original Placcaaibook, 1652-1686,14 Oct. 1652,pp.31-32, Cape
Archives Depot: C.680and Ialker, E. A.. A History of Southern Africa(19j7).
P. 36.
Theal, G. M., Hisfory of South Africa, Vol.(1897).p. 37.
Ibid.,p. 68. REJOlNDER OF SOUTH AFRICA 467
inhabited by them. Several causes contributed to this, the most important
being the following :
(a) Although the Hottentots were initially loath to part with their
cattle.and sheep, they eventually exchanged substantial portions of
their flocks for liquor, tobacco, knives and other articles l. Then, in
1661 2,in 1693 3,and again in 1714 4,diseases kjlled off vast numbers
of their flocks. The upshot was that the Hottentots becarne sa
impoverished that somc were compelled to enter the service of the
settlers. This, in turn, led to the destruction of tribal life.
(b) The old feud between the Hottentots and the Bushmen never
ceaçed, and in the process thousands were kiIled on both sides.
So, for instance, in 16S9 three Hottentot kraals and in 1692 the
whole Kouchuma Hottentot tribe were eitenninated
(c) Diseases introduced to the Cape by the settlers killed off many
thousands of Hottentots. In 1661 5,and again in 1663 ',infectious
diseases caused the death of many Saldsnhars and Icaaprnans.
In 1666 the whole Coclioqua tribe very nearly died out '. Thereafter
tlic Hottentots were plagued just about every year with some
infectious disease or other a.The grcatest disaster occurred in 1713
when an extremely serions epidemic of srnallpox led to the complete
extermination of many tribesq. When the Hottentots realized the
seriousness of the disease, many fled over the mountains where
they met theirdeath at the hands of local tribeç who feared that the
refugees carried the disease with them 1°.This rather vigorous policy
was of no avail, however, and the disease spread ever further away
from the western Cape ll.The disastrous consequences of the disease,
which reappeared in1755 l2and in 1767 '3,are summarized asfollows
by Theal:
"The very names of the best-known tribeç were blotted out by
the fell disease. They no longer appear in the records as organised
communities, but as the broken-spirited remnant of a race, al1whose
feelings of nationality and clanship had been crushed out by a great
calamitv 14."
l Wslker, E. A., op.cif..p. 41.
* Original PEaccaafbook,24 Nov. 1661, p. 174, Cape Archives Depot: C.680.
Ibid.,7 Sep. 1693, p. 182, CapeArchives Depot: C.681.
'Theal, C. hl., Nisl~y and Elhnography of Ajrica Southof the Zambesi. Vol. 11
(1909):p. 446.
"%de Le Roux. H. 3..Die Toesland. Vcrspreiding en Verbrokkelingvan ditNol-
tcntofstammcin Suid-A frika, 1652-171{3Unpublished 'Thesis,University of Stellen-
b~sch, 1945)P~P. 224-225.
Uq Journal,29 XOV. 1663.p. 494,Cape Archives Depot: V.C.4.
Theal, G. M., Histovy and f<thnogvaphyof Africa South of the Zarnbesi,ol. II
(Vol. IIIof the Series)(1922)p. 156.
Le Roux, Fi.J.,Die Toesfand, Verspreiding en Vevhrokkelingoan die Hottentot-
slamme in Suid-A frika. 1652-1713(Unpublished Thesis. University of Stellenbosch,
1945).p.9,
Thesil. G. AI., History and Elhnogra#hy of ,.lfrica Softhe Zambesi, Vol. II
(1909). PP.431-433.
IoDay Journal, 19 May 1713, p. 129. Cape Archives Depot: V.c.20.
" Ibid.,II June 1713. p.145, Cape Archives Depot: v.C.20.
'2Ibid..gr Oct. 1755, pp. 208-209, Cape Archives Depot: C.6zG.
l3Ibid.,5 Dec. 1767. pp. 638-639 and 657.Cape Archives Depot: C.635.
" Theal, G. M., Nislory aiad Elhnography of Africa Soutof the Zambesi. Vol.11
(1909). p.433.46s SOUTH WEST AFRICA
As a result of the above, factors, and also of inter:marriage
between Hottentots on the one hand and Bantu and slaves on the
other Iiand, the Hottentot race has virtually ceased to exist. It is
extrerncly doubtful whether a single pure bloodecl Cape Hottentot
is at preseiit stilto be fouiid in South Africa l.
6. As already stated *,the Bushmen were thinly scattered over parts
of the present Cape Province when Van Riebeeck landed at the Cape. The
Bushmen were nomadç in the truest sense of the word. They built no huts
or homes of any description, and slept either in caves or in the open
veld j.
Eric Walker, emeritus Professor of Imperia1 and Naval History in the
University of Cambridge, said of the Hushmen:
"[TJhey were relics of tlie Stone Age ... Unprepossessing in
appearance the Buçhmen were, and every man's hand was against
them, for they were hiinters, and between Jacob, the tender of
flocks and herds, and Esau, the wanderer, there can be no peüce 4."
Theal described the Bushmen as ".. .vindictive, passionate and cruel in
the extre~ne. .. they never spared an enemy who was in tlieir yower . ..O5.
7. Hy virtue of their habits and disposition the Bushmen were the
natural eneniies of al1 other races. Instances of attacks on Bushmen by
Hottentots, Griquas6 and Bantu in which no mercy was shown to those
captured, abound in historical records 7.As eark as 16j3 it was recorded
that the Hottentotsslew allcaptured Buslirnenandthrew them tothedogs8.
'I'heBushmen regarded the cattte of the settlerç as lethargic prey, and
during the eighteenth century a number of punitive expeditions were sent
out against the litt1e hunters. Towards the close of the century, in the
eastern Cape Province, instaiices occurred where more Bushmen u7ere
killed by such expeditions thnn was necessary for the recapture of stolen
cattle. This gave rise to accusations thnt the Europeans drove the
Bushmen "out of their o~vncountry" 9. Such accusations u7ere,however,
effcctively refuted by H, Lichtenstein, a German ivho trnvclled exten-
sively in the present CapeProvince at the beginning of the nineteenth
century. Referring to the claslies bctween the Europeans and Rushmen
in the central and eastern Cape I'rovince, he said:
"The Bosjesmans [Bushmen] did not originally inhabit the
couniries whence they now carry on their most injurious \svarfare
against the colonists; it cannot therefore be urged, that the savages
are but revenging thernselves for being dispossesseclof their country.
At the time when the Europeans settled in the Roggeveld, in the
Snow Mountains, in Agtcrbruintjeshoogte, and other parts, there
were no Bosjesnians there; it was the wealth of the coloiiists which
1 Schapera, 1..The Kkoisan Peoples of SozdthAfrica (1960),p. +O.
* Vide para.3.supra.
Theal, C. M., The Beginning of South African History(rgoz),p. 17.
Walker, E. A.. AHislory ofSoulherleAfrica (rgjï),p. 33.
Theal, G. AI.,The 13eginrringof South African History (~goz), pp. 14-15.
* Half-caste Hottentots.
Vide,e.g.,Rcsolulions1I Oct. i712.p.27 i,CapeArchives Depot: C.8; iWetnor-
ials and Reporis, 7 May 1776, Cape Archives Depot: C.310 and Letfers Rsceived,
24 Mar. 1530, Cape Archives Depot: C.0.373.
Day Journal, r)Jan. 1653, pp. 362.363, Cape Archives Depot: V.C.1.
Barrow. J.,Tvavels into the Inlerior of Soulher~islfrica,1V(18oG) p. 242, REJOINDER OF SOUTH AFRICri 469
first attracted them thither, from their own proper districts on the
bankç of the Great River '."
In 1809 Colonel Collins, an officia1of the British Covernment, came
to the same conclusion. He wrote :
"The supposition that the enmity of the Bosjesmen was originally
occasioned by their resentment at being forced by the colonists to
quit the territory of their ancestors, seems unfounded, as itappears
that they have always resided in the country they now inhabit since
the Cape has been possessed by Europeans =."
The traditional homeland of the Buslimen, according to Lichtenstein,
was "the district which lies bctwcen the Orange River, and the moun-
tains" 3.
In.this area there waç never any conflict between the Europeans and
the Bushmen. Zn fact, when the former began tri settle thcre the Bush-
men had already been virtuall~l dnven out to South \{'estAfricaby the
Hottentots 4.
8. It is clear. therefore, that when the settlers began to move away
from the vicinity of the Cape peninsula, the whole area compriçing the
resent Cape Province, Save the most eastern portion occupied by the
iantu, was virtually uninhabited. There can consequently be no question
of the settlers having robbed the 13ushmen and the Hottentots of their
land.
C. THE FIRST CONTACT\VITFI THE I3ANTU
g. During the seventeenth century no contact was made between the
settlers and the Bantu. In 1738 White Iiunters found noBantu west of the
Keiskamrna River 5,andan expedition sent out by the Cape governrnent
in 1752 to explore the eastern Cape, found the position still to be the
same 6.
After 1752 members of Xhosa tribes at times crossed the Keiskamma
River as a rcsult of disturbances in the areas occupied by such tribes. AS
soon as peace was re-estahlished, however, they returned to the eastern
side of the river. Even as Iate as 1803 Governor Janssens dtd not find a
single Bantu between the Fish and Keiskamma Riverç '.
Asa result of the eastern movement of the settlers, the authorities at
the Cape entered into an agreement with Xhosa chiefs in terms of hvhich
l Lichtenstein, H., ï'ravels inSoutlaern Africa, translationfrom the original
German by Anne I'lumptre, Vol. II (1330). p. 64.
Collins, Col., "Journalofa Tour to the Sorth Eastern Boundary, the Orange
River, and the Storm Rlountainï", The Record: or h Series of Officiai Papers
Relative to the Condition and Treatment ofthe Sative Tribes of South AfricaPart
V,So. I (1309-i 19).compiled, translated and edited by hfoodie. D. (1960), p. 34.
Lichtenstein, H. Travels in Soulhern Africa, translation from the original
Cerman by Anne I'lumptre, Vol. 11 (1930)p. 242.
t'an der hlcrwe, P.J.,Die Noordwaarlse Beweging van dieBoere VOOY dieGroot
Trek (1770-18qz), p.140.
col lin^Col. "Joirrnnl of a Tour to the North Eastern Uoundary, the Orange
River, andtlie Storihhuntains", The Record:or h Series of Official I'apers Relative
to the Conditioii and Treatment ofthe Native 'Tribesof South Xfricx, l'art '.'O1
(1808-18rgc )o,rnpiled. translated aedited by Moodic, D. (IvC~),p. 9.
Theal, G. AI.Helangrijke Hislorische Dohtrmenten,Vol.11(1896) p.64.
Ibid.. Vol. III (191)p. 249.47O SOUTH WEST AFRICA
the Fiçh River was proclaimed in 1778as the boundary of the area under
their jurisdiction l. The British Government later recognized this boun-
dary, but the Xhosa continuously conducted raidson the western side of
the river and a number ofwars followed 2. At the end of the sixth war in
1836the British Govem~nentproclaimed the Keiskamma River the boun-
dary of the then Cape Colony, and in this way the traditional border
of the Bantu area was re-established '.
IO. In Annex 3 to the Reply it is stated that "[flrom 1779, a series of
'Kaffir Wars' began, as the Bantu and Europeans fought each other
for land" '. This statement constitutes an over-simplification of the
causes of the various wars which occurred during the period 177 -1878.
Although it is true that some frontiersmen may have covete c?areas
occupied by the Bantu, the real cause of these wars was the continuous
disregard by the Xhosas of the boundanes agreed upon, from time to
time, as between their areas and the arcas of the White settlement. Not
onlydid the Xhosas cross these boundaries with irnpunity whenever they
sought further pastures for their herds, but over a period of a century
they indulged in the periodic raids, mentioned above, which involved
robbery and murder on alarge scale
II. In the said Annex 3 it is further alleged that-
"Great Britain, which established its rule over the country
[presumably the Cape Colony] in 1814, also pursued a systematic
poIicy of annexation and increased political authority over the
Bantu .. .The Africans were thus progressively confined to limited
areas ofland 6."
In the Counter-Mernorial a brief descri tion wasgiven of the process by
which the Bantu areas in the eastern e ape were annexed to the Cape
Colony. It was also pointed out, however, that there was no intention of
depriving the Bantu of their land, and that the areas.concerned were
administered as Bantu dependencies rather than as integral portions
of the Cape Colony '.The position has remained virtually unchanged,
Walker, E. A., A Hisfory ofSoutherlz Ajvica (1957)p. 98.
Vide.e.g., Theiil, G. M., HisfoofSoirfh Africa (1927).Vol. 1 (Vol. V of the
Series), p321. and iOid.(igzEi)Vol. II (VciI.VIofthe Series), pp86-59,
Theal, G. M.,History ofSoillAfrica, Vol.Il(Vol. VI of the Seri(iyzh),'p[go
IV, p. 350.In thc said Annex 3 the United Nations Special Cornmittee üllcges
that "the Afrikaners called the Bantu people 'Kaffirs' (unbelievers)"ibidp. 350,
footnote 2. Thus the impression is creatcd that the Afrikaners called the Bantu
people "Kafirs" because they were "unbelievers". The true position, howcvcr, is
other Bantu tribcç) from the Portuguese-whohe called the East Coast 13sntu "caf-ed to
fresP'-without king aware that itwas not a tribai name but derived from the
Arabic word for infidel-videFowler. H. W. and Fowlcr, F. G. (Eds.), The Concise
Oxford Dictionary of Cuvrent Englis(1956) p,.6.18, s.v"Kaffir". In fact, the term
was forrnerly used freely by English and other missionaries in South Africa without
any derogatory intent.
TheaI, G. M.. History of South Afvica from 1846 to 1860 (1904). pp G-7 and
96-97; Theal. G. BI., History of SouthAfrica. V1l(Vol.V of the Series(1927), pp.
331and 335-336; ibid.V ,ol. II (Vol.VI of the Series(1926).pp. go-gr and Theal,
G. M., History and Elhnogrnphy of Africa South of Ihc Zambesi, Vol. III (1912).
pp. 192-193 and 281; Theal, G. BI., History of SoAtfrica /rom 1873#O1874, Vol. 1
(Vol. X of the Series), p52.
NP p. 350-
Vide In. pp. 234-235. REJOINDER OF SOUTH AFRICA 47 I
and these areas-the Ciskei and the Transkei-are still at present pre-
dominantly Bantu areas. It foilows that as far as the Cape Province is
concerned, there isno substance in the allegation that the Europeans
took occupation of Bantu land.
12. As>ega.rdç ~Slicants' allegation that the attempts of the author-
ities tokeep the area of White settlernent apart failed because thesettless
"became dependent on the me of Bushmen, Hottentot and Afncan
labour" l, it should be observed that tvhile Hottentots did enter the
employ of Europeans, very few Bushmen ever did. And up to the stage
when the reat migration from the eastern Cape to the intenor (the
Great Trek? took place between 1830and 1840, hardly any Bantu were
ernploycd by Europeans.
D. THE GREAT TREK AND THE ESTABLISHMENT OF
THE REPUBLICS
13. Applicants allege that the Great Trek-
''...was in large measure an ideological protest against theattempts
which the colonial government had been making to apply the ruleof
law to the entire colony and to abolish legal discrimination on racial
grounds 2."
It is perhaps not surprising that Applicants do not quote a singIe
authority in support of this allegation, which is devoid of al1substance.
The Colonial Government took no steps, affecting the settlers in the
eastern Cape, "to abolish Iegal discrimination on racial grounds", and
leading historians are agreed that the main cause ofthe Great Trek was
the failure of the government to protect the settlers against the incessant
raids, accompanied by robbery and murder, carried on by Xhosa tribes-
men on the western sideof the Fish River. As Theal puts it :
"Some years later [i.e., after the Great Trek] when, owing to the
interna1 weakness of the different governments established by the
emigrants, coupled with security against violence by blacks, it
became possible for runaway debtors and rogues of different descrip-
tions tolive and thrive upon the barders of their settlements, it was
frequently asserted by their enemies that the farmers left the colony
to freethemselves from the restraints of Iaw. This chargewasuntrue.
The early emigrants constantly maintained thabthey left the colony to
free themseEvesnot of law bzrtof Iuwmiless~zeAs.ew men of indifferent
character may have gone with the stream, but their boast as a body
was that they left in open day and after their intentions had been
publicly announced. That they should be followed by men whoçe
motives were different was quite natural, but they cannot in justice
be blamed for it j." (Italicsadded.)
If any further refutation of Applicants' allegation is necessary, it
suffices to quote from a despatch to the Secretary of State in London,
dated 29 July 1837, in \r,hichthe English Governar of the Cape Colony,
Sir Benjamin D'Urban, attributed the Great Trek to the-
". .. insecurity of life and property occasioned by the recent
l IV.p. 459,
* Ibid,, p460.
Theal, G. M.,Hisloryof South Africfrom 1828to 1846 (1904).p. 268-269.472 SOUTH WEST AFRlCA
measures, inadequate compensation for the loss.of the slaves, and
.despair of obtaining recompense for .the ruinous losses by the
Kaffir invasion l". '
The author described the Trekkers as "... a brave, patient, industrious,
orderly , and religious people, the cultivators, the defenders and the tax
contributors of the country:' l. . ,, ,.. .
14. The Trekkers journeyed through the east-central part of the
present Cape Province to the Orange Free State, where some,remained
behind while others either went on to the Transvaal or branched offto
Natal. The areas in the said three provinces through which they trekked
were for the most part completely uninhabited. This was due to what the
Bantu at present still cal1the Mfecane, the crushing 2.Over a period of 15
years, from approximately 1820 to 1835, the most terrible bloodshed and
devastation imaginable took place in these areas. It started with the
succession of Shaka as king of the Zulus. His impis (regiments) drove
right through Natal and even crossed the Drakensberg mountains into
the Transvaal, leaving a trail of desolation behind them. Other tribeç
were either exterminated or driven out of Natal. In the processrsome
tribes, notably the Amangwane, the Hlubi and the Mantatis, poured
northward, smashing every tnbe that lay in their path =. According to
reliable calculations the Batlokwa Mantatis tribe alone completely
exterminated between 28 and 30 other tribes in the north-western
Transvaal 3.
15. But even worse times were to corne. Mzilikazi, a lieutenant of
Shaka, fled with his men from his former master and established the
Matabele tribe in the Transvaal =.Agar-Hamilton, the historian, remarks.
that-". . . missionary evidence shows hirn to have been the plague of all;
natives and white men aIike" +. Mzilikazi firstlaid waste the eastern
Transvaal-
"... robbing those who gave hirn shelter, burning their homes,.
captunng their women, inipressing their young men into his service,
leaving nought behind but a long black and bloody trail of con-
flagration, massacre and desolation s".
Mzilikazi onginally çettled near the Olifants River and eventually made.
his home in the western Transvaal. For years on end his impis continued
their murderous raids on other tribes; e.g., tlieMapoggers and the Pedi in
the north-eastern Transvaal 6, the Bakwena near the present Rusten-
burg ', and the Bahurutsi and Barolong in the western Transvaal '.The
lTheal. G. RI.. Histovyof South Africa from 1828 to 1846 (rgoq), p 170.
Walker, E. A., A Histovy of Southevn Afvica (1957)p~. 175.
Sto~v,G. \Ir,,The :VadivRuces ofSmfh Africa (igro), pp. 460-47 r;Huyser, J. D.,
Die Natuvelle-Politiek vavi die Suid-Afrikaanse Hepubliek, 1838-1877 (Unpublished
Thesis, University of Pretoria, 1936). p. 23 and Voigt, J. C., Fifty years of tlie
History of the Republic ilzSouth Afvica, Vol. 1 (18gg),p. 192.
+ Agar-Hamilton. J. A. I., The Native Policy of the Voortvekker(1928). p. 18.
Bryant, A. T.. Olden Times in Zululand and Natal (~gzg),p. 423.
Van Kooyen, T. S., "Die Vcrhouding tussen die Baere, Engelse en Naturelle in
die Geskiedenis van die 00s-Transvaal tot 1882", Archives Yeav Book jor South
Ajrican History, Val. 1 (~ggr),p. 88.
Huyser. op. cil.p. 24. REJOIKDER OF SOUTH AFRICA 473
missionary, Robert Moffat, gave a vivid description of the slaughter and
horror involved in the attack on the Bakbvena l.
, Mzilikazi's impis also laid \vaste parts of the Orange Free State.But it
suffices to point out that, in the words of Agar-Hamilton, the end result
of their murderoh rai& was to have-
". . . destroyed many tribes and depopulated large stretches of
country. IVide areas were Ieft available for European settlement,
and few tribes survived 2."
16. Up to 181g.the present Orange Free State province was inhabited
only by a few scattered Bushrnen clans 3.John Edwards, one of the very
first missionaries to visit the territory, described it as ".. . a vast extent
of country, inhabited by nothing but Bushmen and wild animals" 4.
After 1819a number of Bantu tribes Aed to the Free State from Natal
and the Transvaal, only to become in due course victims of Mzilikazi's
marauding impis During the period 1820-1830 a number of half-bred
Hottentot tribes crossed the Vaal River from the northern Cape Colony
into the Free Stateand immediately began toexterminate the Bushrnen
At that stage White farmers living in the northern Cape were already in
the habit of crossing annually into the southern Free State, in search of
pasture for their flocks 7, and sincc approximately 1825 anumber of these
farmers settled permanently in this area 8. When the Griquas-members
of the Hottentot tribes referred to above-laid clairn to portion of the
southern Free State in Iater years, Sir Harry Smith, the then Governor
of the Cape Colony, wrote to Lord Grey:
"1 must here assure your Lordship, that Captain Adam Kok and
his followers are mere squatters,and have no more hereditaqr right
to the country in question than the Boers thernselves, who have been
in the habit, for many years, for the sake of pasturage; of driving
their herds and fiocks over the 0r;~nge River 9."
While not recognizing the claims of the Griquas, the Orange Free State
Republic in 1861 bought the sa-caltcd Griqua area from their chief, Adam
Kok, for the sum of RS,ooo la.
17. \Irhen the Trekkersarrived in the Free State, the position was that
the territory tas rininhabited Save for the farmers in the south, the above-
mentioned Hottentots, thinly scattered Bushrnen and a lew small Bantu
tribes. Thelatter were a Bechuana tribc numbering abolit Soo,which in
1833 migrated under the guidance of n Frerich missionary, Pellissier, from
l Quoted liy Kotze, D. 5.."Die Ii7erste Amerikaanse Sendelinge onder die Niata-
beles", Archives Year Book forSoutiiAfvicn~ Hisfory (1950)V.ol. 1, p199.
Agar-Hamilton, J. A. I., The Native Policy of the Voortrekkers (19p. 4.
hlalan, J. H.. Die opkoms van 'nRepubliek (igzg),p. g.
'Edaards, j., Re?nilriscenm of the Early Li/e and ilfissionnry Labour(1S86),
P. 7Bryant, A. T.,Oldetz Times in Zrrluluitdaiad hrata(1929).pp. 142-143.
Stow, C. EV. ,kei\'~five Races of SorrAhfricr(I~IO).pp. 309-310.
Trek (1770.1842rw()<137)pp. 117-126.druaartseBeu16ginvan die Hoereuoordie Grooi
versla(gUnpublishedJ.manuscript).np.vi 1.ieSuidoos-Vrystaal: Ecrste Voorlopige
"British Blue Book",Corvesponden~eveln(ivc to assutnptionofSovereigrl~yover
fhe Terviiory àelweeflieVaal and Orn?igeRivevs (1851) P. 82.
'O Theal, G.Al.,History of SouthAfrica, Vol.IV (Vol.VI11 of the Series)(1919).
p. 197-474 SOUTH WEST AFRICA
the region of theVaal River to Bethulie in the most southern part of the
Free State l;the Barolong which in 1834 moved from the same region to
Thaba Nchu near Basutoland 2; the Bataung which the Trckker leader,
Potgieter, found along the Vet River, and a number of disintegrated
tribes in the north-western and mountainous north-eastern parts of the
temtory. As will be shown hereinafter 3, the Trekkers recognized the
claims of these Bantu.
18. In order to appreciate the extent to which the interior of South
Africa was uninhabited at the time of the Great Trek, regard should be
had to the following:
(a) In 1.836and 1837\V. C. Harris, a big game hunter, explored the
central and northern Free State and later made the following
observations on his journeys :
"Although tliinly popdated by skulking broods of Bushmen and
by starving remnants of nomadic pastoral tribes, which have been
broken up by war and violence, this is a land in which no man
permanently dwells-neither is the soi1any man's propert y,being
abandoned as water or fuel fails ... Amongst the savage nations
of South Africa, as elsewhere, a principle of extinction has indeed
for ages prist been in active operation. Regions now silent and
deserted, once contained their busy throng, whose numbers and
strength have been gradually brought down by war and want.
Whole tribes have been rooted out from their hereditary homes,
and have either disappeared from the face of the earth, or, pursued
by the 'gaunt and bon? am' of famine, çtill wander with fluctuating
fortunes over these measureless tracts. For hundreds of miles,
therefore, the eye is not greeted by the smallest trace of human
industry, or by any vestige of human habitation-the wild and
interminable expanse ever presenting the .same appearance-that
of one vast uninhabited solitude 4."
(b) The leader of one of the first treks, Louis Trichardt, reported in
his diary that he found the central and northern Free State un-
inhabited, and that he found no Rantu whatsoever between the
Vaal and OIifants Rjvers in the Transvaal The only tribe of any
importance encounted by Trichardt, was the Venda who lived in
the Soutpansberg mountains in the most northern part of the
Transvaal 6.
(c) In 1836 a party of Trekkers under the leadership of Hendrik Pot-
gieter feft the Sand River in the Free State for fhe purpose of
inspecting the interior as far as Portuguese East Afnca. During the
first 18days of their journey (cover~ng a distance of more than
400 miles, or 640 kilometers) they met no one, and it was only after
l Pcllissier,H., Jearz PierrPelellissiervan Relh(1956) ~.162; Bethuliewas
atthe time known as Boesmanskool.
Theal.C. M., Ras~ttolanRccords (1883)Vol. 1,pp. 2and 4-6.
Videpara. 23. infra.
Harris. W. C.. The Wild Sports of Southern Afr(1963).pp. 255-256.
' The distance between thetwo rivers covered by Trichardwas approxiniately
zjo miles(400 kilometers).
Huyser. J. D.. Die ~Vaturelle-Polivan die Suid-fArikaanse Republick1838-
1877 (Unpublished Thesis, Universityof Pretoria, 1936). pp. 25-26. REJOINDER OF SOUTH AFRICA 475
passing Rhenoster Poort (west of Louis Trichardt) that they found
a few scattered inhabitantsl.
(dl In 1853 the British Government sent Sir George Clark to the Free
State to report on the proposed evacuation of the territory. In a
letter to the Duke of Newcastle, wntten in his camp on tlie Vet
River on 3 December 1853 ,e said:
"Their [the Dutch boers] occupation of the central position of this
territory displaced no one, excepting the half-human Bushmen,
squattered here and there, rooflessamongst the rocks =."
(e) The historian, J. C.Voigt, who made a thorough study of, iwleralia,
the settlement of the Trekkers in the Transvaal, states that even
in the northem areas, short of the Soutpansberg mountainç,
". . .nowhere on the banks of the magnificent rivers were any
kraals or native towns to be seen. The sands showed not even a
single human footprint 3."
(j) In 1880 the missionary, G. Blencowe, wrote:
"When the Boers entered the Transvaal, .the Wakkerstroorn,
the Heidelburg, the Pretoria and the Potchefstroom districts were
aithout any of the original inhabitants; while the southern half
of the Rustenburg, the southern two-thirds of the Niddelburg, and
the like proportionof the Lydenburg districts were also unoccupied.
The M7akkerstroom and a portion oi the Heidelburg districts do
not seem to have been occupied by Natives, except in some of the
sheltered valleys, but the other parts of the southern hnlf of the
Transvaal were well, and in many cases densely peopled, as their
ruined kraal at present time show 4,"
In reaction to this statement another missionary, A. Merensky,
who came to the Transvaal in 1859 and who was known to be a
champion of the Bantu, declared:
"It istrue that before the arriva1 of the Boers the Natives of the
Transvaal were entirely routed and dispossessed of their respective
territories; but this was the case in the northern districts as well as
the southern. Not only the Zulu's of Mosilikatse, but the Zulu's
of Tshaka and hlanekos, the Amaswazi and others, have taken part
in those raids by which the Natives of this country have been
reduced to the state of çcattered and miserable fugitives, living in
caves, and on rocks, andin deserts. Even Sikukuni wandered in those
times with his father from one spot to the other on the northem
side of the Limpopo. In the meantime the Zulus iive in the Bapedi
country ... Ifthe strongest of al1Rasuto tribes living in the nortliem
parts of the Transvaal were routed by the Zuluç in such a way,
you rnay easily come to the conclusion that not a single tribe of
aur Natives actually remained in possession of its territory ...
But even in the year 1844 , hen the Boers arrivedto settle in the
districts of Waterberg, Lydenberg and Zoutpansberg, they found
l Theal, G. M., History of South Africa3828mto 1846 (1904). p. 276.
Theal, G. M., Basutoland Recovds, Vol. II (18833, p. 79.
Voigt, J. C., Fiffy years of the His$ory of the Nepublic Africa, Vol1
(189"British Blue Books",Fuvthev Correspondencc respectiag Aflaivs01South
Africa,C.-2740, p.5.476 SOUTH WEST AFRICA
only very small numbers of Natives anywherc, who were only too
glad to see them, and to be protected by them from the assegai of
the Zulir l."
19. Tlie first Trekkers ivere fortunate to have escaped the attention
of hlzilikazi's impis, but by October 1836, the latter had already mas-
sacrcd 46 people and had swept off with a hundred horses, nearly 5,000
head of cattle, and more than 50,000 sheep and rats Thereafter
expeditions were sent out against i\lziiikazi who, witli is ro,ooo warriors
and their dependents, was then, living in the western Transvaal. In
Novernber 1837 the Rlatabeles were decisively beaten, and they then
fled to the present Rhodesia 3.
20. When the Trekkers arcived in Natal, there were only 10,000 Bantu
living in Xrital proper, mainly in the southern and mountainous arcas 4.
In February 1838the leader of the Trekkers, Piet Retief, obtained froni
the Zulu chief, Dingaan, a written cession of "the place called Port
Satal, together with al1 the land from the Tugela to the Umzimvubu
river. . ."5.
Refore Retief and Iiis party could return to their people, hotvever,
tliey irerc treacherously murdered in the kraal of Dingaan 5 Imrnediately
therenfter the Zulu impis set out against the enc:tmpments of the Trek-
kers iii tlie vicinity of the present town of Weenen, and massacred a
numhcr of them 7.Keririy a year later, in December 1838, the Trekkers
decisively beat Dingaan's impis at Blood River 8. But it was left to
alpande, a half-brother ofDingaan who had turned against him, finally
to break the po~verof the tyrant in January 1840 9. Thereafter Alpande
\vas recognized as king of the Zulus by the government established by
the 'I'rekkers, and the Zuliis were left in undisturbed poçsession of
Ziilulnnd 10.
21. The above exposition shows that the Trekkers did not by force or
otherwisc drive Bantu nway from land occupied by them-save for
Blzilikaziand his Matabeles who were intruders in the Transvaal IlThere
can be rio doubt that tiie victory over the Matabeles was wnrrnly wel-
comed ky the remnants of the Bantu tribes whicl~had suffered immensely
during JIzilikazi's reign, As Theal puts it:
"It would be difficuft to exaggerate the importance of the vic-
tory. .. to civilizatioii and the happiness of hoth white and black
people in South Africs 12."
22. In cases in which there was any doubt as to claims to l.nd, tlie
Trekkers and the later governmeats of the Republics negotiated witli tlie
"Rritish Blue Books", op.cil.p. go.
Theal. C.J1.H ,istory of SoatthAthca from r828101846 (rgoq)p,.281.
Ibid.,p.293.
' Vide III,p.234,
Theal, op.cil., pp316-3i7.
Ibid. pp. 317-318.
ibid.,p. 320,
Ibid., p. 331.
Ibid. p. 344.
la Iliid., 345.
lt Vide para.I5,supra.
l2Theal, G. aI., History of South Africn, Vol. I(~61 V.I of the Series) (rgz~),
p. 320. REJOIKDER OF SOUTH AFRICA 477.
chiefs concerned. So, for instance, .Hendrik Potgieter in 1836 bought
the area between the Vaal and Vet Rivers from Makwana, the chief of
the Bataung, although his small tribe could not reallyhave been regarded
as king in occupation of this area 2. In June 1845 Potgieter obtained
from Seklvati, chief of the Pedi, land which allegedly.belonged to his
tribe before the reign of the Matabeles 3.In 1846 it transpired that the
Pedi had no claim whatsoever to the lana, and a new agreement: was
then concluded with the chief of the Swazis
23. In the three major Republics establislied by the Trekkers, their
governments always sought ta keep theareas of White settlernent apart
from the Bantu. After the Trekkers had settled in Natal, thousands of
Rantu refugees moved in,and this causcd the Volksraad (legislative body)
in August 1841 to pass a resolution that such Uantu should settle cither
in Zululand or in the districts between the Umzimvubu and Umtamvuna
Rivers, so as to effect a separation between the races '.
In the Free State the claims of the Barolongs were recognized although
this tribe had moved to Thaba Nchu only two years prior to the Great
Trek 5.The Barolong reserve at Thaba Xchu still exists at present. An-
other reserve was set aside in the north eastern Free State where scattered
tribes had taken refuge against the onslaughts of the Zulus.
In 1853 Andries Pretorius, the recognized leader in the Transvaal,
issued a proclamation prohibiting the White inhabitants of the Transvaal
from setthng in the immediate vicinity of areas occupied by Bantu
tribes 6.Although this proclamation was not aiways strictly adhered to,
the government of the old South African liepublic (Transvaal) saw to it,
inso far as was in its power, that Bantu tribes remained in undisturbed
possession of their villages and areas 7.As was pointed out in the Counter-
Mernorial,a commission \vas subsequently appointed for the purpose of
assigning defined areaç to Bantu, but before the commission could com-
plete its work, the Anglo-Boer War (1899-1902) broke out Another
commission, appointed in 1905, duly completed the work interrupted by
the war
It follows, therefore, that there isno substance in Applicants' allegation
that the çettlers, because of their "appetite for land", took occupation
'of non-NThite territories 9.
Vide para. 18,supra.
Sathan. M.. The VoortJekkers O/South A/rica (1937). p.141.
Van Rooyen. T. S.. "Die Verhouding tussen die Boere. Engelse en Saturelie in
die Geskiedenis van die 00s-Transvaal tot 1892", Archives Year Book /or Soihth
African History (rggr), Vol. 1.pp. 3-4.
Theal,G. M.. Histovy of South Africa front 1825!O1846 (1904). 363.
Vide para. r7. supra.
Proclamafion signed by A. W. J. Pretorius,22 Apr. 3853,pp. 1-2,Transvaal
Archives Depot: Vol. State Secretary No. 5, 11.519153.
Letterby AI. W. Pretoviiato Native Chief Massouw. 24 July 1869,pp- 1-2,
Transvaal Archives Depot: StateSecretary B.B. 657/1869;Letf8rby M. IV.Pretorius
loGrutzner, 19 Oct. 1869, pp. 1-2, Transvaal Archives Depot: State Secretary H.B.
g81j69; Letter byJI. IV. Prelorius lo J. Brooksig Oct. 1869, pp. 1-2. Transvaal
Archives Depot: State Secretary B.B.979169; Letter by BC. E. Procs to Landdrosl,
BEoemhof, 23 Nov. i8Gg. Transvaal Archives Depot: State Secretary B.R. 1310/69
and Letberby Slaie Presidento Paramuuni Chicf llloskelle, Xov. ~874. Transvtr;il
Archives Depot: State Secretary B.B. 1490174.
Vide III, p. 236.
IV, p.459.47s SOUTH WEST AFRICA
24. With reference to the settlers from whose ranks the Trekkers were
drawn, Applicants allege that-
"[slince the only non-whites they encountered were their slaves,
their servants, or their enemies, and since they were imbued with
a simplistic version of Calvinism, they became an exceptionally
colour-conscious people I."
Having made the unsubstantiated statement, already referrcd to 2,
that the Great Trek was mainly caused by the attempts of the Colonial
Government "to apply the de of law ... and to abolish legal discrirnina-
tion on racial grounds", Applicants proceed:
"Thereafler in the South African Republic and the Orange Free
State the Afrikaner Voortrekkers established a caste system inwhich
only '\Vhites' were deemed to be members of the body politic and
al1non-'\irhites' were subject peoples '."
Applicants create the impression that the Voortrekkers were such "an
exceptionally colour-consciouspeople" that they denied alihuman rights
to the Bantu in the Republics established by them. In the succeeding
paragraphs Respondent will brie0y demonstrate that this impression is
completely misleading.
25. In support of the firstallegation quoted above, Applicants rely on
hTacCronewithout, however, referring to specificpassages from his book.
Professor MacCrone is probably an authority in his own field of study,
psychology, but he is certainly no historian and the conclusions reached
in his book are not based on a thorough study of histoncal sources.
It is true that there were groups arnong the Voortrekkers who had a
narrow approach to religion and also an exaggerated opinion of the
inferiority of the Bantu in his then existing stateIt is also true, ho~vever,
that most of the Voortrekkers were very humane in their approach to the
Bantu. They certainly did not regard the Rantu as their equals, but
in this they were no different from their English compatriots, or from
Europeans al1 over the world, in general. There was at the time such an
enormous difference between the background and general level of
civilization of the Voortrekkers and those of the Bantu that the riatural
reaction of thc former was to differentiate on a basis of race or colour.
26. Eric Walker, the historian quoted by Applicants in another con-
text 3,made a dctailed study of the Voortrekkers in his authoritative book
covering the Great Trek, and certainly did not reach the same conclusions
as iilaccrone. As far as the religious conceptions of the Voortrekkers are
concerned, it sufices to quote the following passage from \17alker:
"It might be that the religion of the frontiersrnen was often a
narrow thing amounting even to the bigotry that incensed liberal-
minded visitors; it might be fatalistic, as when a mother could re-
fuse to have her child's physical defect remedied because 'as,God
had appointed itshe could not alter it'...The Boers were not singu-
lar in these things, and, as for fatalism, life in and around the Karoos
was apt to breed such an attitude towards a God whose wayç clearly
passed understanding and from whose decrees there was no appeal.
1 IV,p. 460
2 Vide para. 13, supra.
IV, 1).459footnote4. REJOINDER OF SOUTH AFRICA 479
Be al1that as it may, religion was a real thing to the Boers, real
enoughto havepreveatedthem from becoming 'whollydege~zerata end
savage'. They orved it to religion first and then to their wives, who
womanlike clung to the arnenities of liIe and the consolations of the
Church more desperately than the men, that in the course of their
long wanderings among the 'heathen' they had not sunk to their
level as Westerners sometimes feared they might sink, and the bor-
derers in both the Americas of their days were actually sinking l."
(Italics added.)
27. In the Republic only adult, male Europeans were eIigible to vote
and to be elected to the legislative bodies. At a time when the franchise
was withheld from women, it would indeed have been unthinkable to
confer the same on the Bantu, whose contact with Western civilization
dated back no more than a decade or two, and wIlohad not the slightest
conception of the functioning of a democratic society. Moreover, and as
already pointed out, the governments of the Republicç sought from the
outset to segregate territorially among members of the White and
Bantu groups.
Apart from the sphere of government, however, al1the inhabitants of
the Rep-ublics were generally speaking treated alike by their laws. No
enmity was shown by the governments to missionaries working arnong
the Bantu 2, and slavery was expressly outlawed j.
a28. In 1874 President Burger sent out a questionnaire to certain per-
sons in which they were asked to comment on the Native policy of the
South Afncan RepubBc. It iç perhaps of some significance that George
Sharley, rector of the Church of England in Pretoria, replied: "The policy
followed by the preçent Government with regard to the natives is hu-
rnane, mild and not too severe a character +." .
29. In a letter quoted in 'the British parliament in 1881B ,jshop Co-
lenso, knosvn as a champion of the interest: of the Bantu, wqte:
"1 have urged the simple fact that Soo,ooo Natives rvere living
under the Boer Government yithout taking to flight and running
. over to Natal for protection is;enough to show that the accusation
, against the Boers of illtreating the Natives under their nitemust be
. grossly exaggerated, and that, to al1 appearance, they even prefer
-I7n.-the Boer rule to Ourown 5."
.ri -
30. It içurtnecessary to dwell any .f.@theron the policies adopted by
the Republics in regard to the Bantu. The above briéfexposition makes it
abundantly clear that no "caste systemw-with al1the negative implica-
tions associated with . .the word "caste"-iv.s < establiçhed by the Voor-
trekkers. a ._ . .+_ .,
. -,. . . .
1
,. ' Walker, E. A.. The Gveat TA (1934). PP. 57;58. ,.. .
Nathan, 3.. Paul Kruger (19463, p. 254.
- 3 Minutes of théCouteci( of~epreih;tati..s,4 Kov: -,47, pp. 103-105 ~ransvaal
Archives~epoti~.~.~.'. ' -
1877 H(Unpublished Thesis, University of Pretoria, rg36), p. 261.t .t.-cbl.' !.-38-
' Jordaan, J. T., Die Ontwihkclzng van die Stnding von dit Nederduits Gtrefo*-
meerde Kerk in Transvaal (Unpublished Thesis, University of Pre+ri?,,%ig62),
PP. 98-99. ...,-.ka ... -.480 SOUTH WEST AFRICA
E. UNIFICATION AND ITS AFTEIZlllATH
gr. Applicants contrast the "caste system" which was allegedly estab-
lished in the Boer Republics with the position in the Cape Colony where-
". ..the idea that the law should not discriminate between people on
account of their race or religion gained considerable support among
al1sections of the population l".
Applicants proceed to quote the views held before 19x0 by two Cape
politicians, J. W. Sauer and F. S.Malan, and the authoress Olive Schrei-
ner, with a view to substantiating the above statemcnt, and to showing
that the Cape delegates to the National Convention, which was convened
for the purpose of drawing up a constitution for a united South Africa,
"pledged themselves to uphold the Cape system" 2.Having stated that
"the delegates from the northern colonies, including Natal, were de-
termined to debar. al1 non-whites from exercising political power in the
Union", and having by way of illustration quoted the views ofa member
of the Orange River Colony parliament, Applicants conclude that-
"[tlhe result was that the Cape delegates agreed that only 'Whites'
should be eligible to become members of the South African parlia-
ment and that the franchise laws of the four colonie? should remain
in force in the respective provinces of the Union, until they were
altered by parliament; and the way was thus paved for the establish-
ment and maintenance of a caste system throughout South Africa 2."
32.It is conceded that in the old Cape Colony there was theoretical
Iegal equality between the races in the sense that the franchise was open
to al1men, 'irrespective of race, who complied with certain qualifications.
It is also true that the Cape delegates to the National Convention, or at
Ieast the majority of them, sought to introduce the Cape system in the
proposed constitution for the country as a whole. It should be borne in
mind that, almost without exception, the Cape political leaders were
living in the western Cape in which hardly any Bantu were to be found
at the time, and which was far removed from the concentrations of Bantu
in the areas reserved for their occupation. To these leaders the problems
created by the presence in one and the same country of different popula-
tiongroups indifferent stages ofdevelopment and with different languages,
cultures, moral concepts, etc., were understandably not so real as to
their colleagues in Natal and the northern colonieswho had already con-
ceived the notion that a policy of separate development offered a real
and equitable solution to the said problems.
33. One of the main reasons why the northern and Natal delegates
almost unanimously, and a number of the Cape delegates as well, opposed
the Cape franchise system, was the abuse which had been made of the
system in the Cape Colony. In the words of B. K. Long:
"They [the Natives] had a vote in Cape Colony before Union, and
their names were then on the same votersl roll as those ofthe white
voters. The qualification for a vote then was ability to write name,
address, and occypation, as well as ownership of a small amount of
property, or eaming of a not very large annual wage. There was no
distinction between Europeans and non-Europeans, so far as their
' 'i '
,'l IV. p.460. . . . <. : !:
Ibid.,p.461. REJOINDER OF SOUTH AFRICA 481
right to the franchise went ;any man, whatever hiscolour, could have
a vote if he codd satisfy the registration officia1that he had the
requisite qualification. IVhat was the result? Thete rvas widespread
abuse. Political parties hired roorns close to the office where the
registration officer sat. Raw natives, quite unable to read or write,
were taken into these rooms, taught to write down their name,
address, and occupation, and hurried next door to get themselves
registered before they forgot the lesson. The whole thing was an
open scandal, in wh'ich both the then political parties connived '."
34. Despite the initial attempts of the Cape delegates to incorporate
the Cape franchise system in the draft constitution, the parliaments of
the Orange River Colony, the Transvaal and the Cape Colony, and the
electorate of Natal eventually accepted the draft, as amfnded at a short
finalsession of the National Convention in Bloemfontein, whereafter it
was duly approved by the British Government. As Professor Eric Walker
puts it :
"The Draft Act was naturally assailed on various groundr in
each of the colonies as soon as it was published; but Hofmeyr failed
to swing the Bond against it in the Cape, and three of the Parlia-
ments accepted the Draft, though those of the Cape, and the O.K.
Colony proposed seriouç amendments. The Transvaal legislature
proposed none , .The amendrnents wre nevertheless disposed of at
a short final session at Bloemfontein, the revised Draft was accepted
by three of the parliaments and by an unexpectedly large majority
of the electorate voting at a referendum in Natal and, in spite of
Schreiner's efforts to mobilise English opinion against the franchise
clauses, which he regarded as a trap rather than a safepard, it
passed the Lords without challenge, easily overrode opposition in
another place, and duly received the Royal Assent =."
35: By stating that-
". . .the delegates from the northern colonies, includingxatal, were
determi.ned todebaral1 non-~vhites from exercising political power in
the Union 3" (italics added),
and then quoting the view expressed by a single moiber of the Orange
River Colony parliament, J. P. G. Steyl, Applicants create the impress~on
that the said delegates held a similar view, viz.,"that the Native wrts
(not) a man and that he was (not) entitled to rightç" 3. Applicants fail
to mention, however, that the Prime Minister of the Colony, Abraham
Fischer, the leader of the opposition, Sir John Fraser, and the Attorney-
General, 1. B. 31. Hertzog, deprecated the tone of Steyl's speech 4, and
that tlie true view of the majority of thémembers of the Colony's padia,
ment was during the same'debate expreççedby C.L. Botha who said that
"[hie wished the black man to have al1his rights in his own country and
the White man in his"
(Italics added.)
Shor.>y,after the Union of South Africa was established, legislation was
.'Lang; B.K., IgiSmufs's Camp (1945)p .. 102. . .
Walker, E. A., A Histo~y ofSouth Africa (1935)p.p. 533-534-
i.3IV,.p. 461.
Thompson, L.M.; The UnificalioofSouthAfric~ 1902-19x(0 1960)p,p.333-334.
' Ibid., p.333. .i.. . , .. . . .482 SOUTH WEST AFRICA
adopted to glve effect ta the firm conviction of the majority ofthe politi-
cal leaders in the country, viz., that it would be in the best interests of
al1 the inhabitants of South Africa if the White and Native groups were
to esercise their basic rights in their own respective areas. As poi~itedout
in the Counter-blemorial, the Natives Land Act of 1913 \vas the initial
legislation embodying the principle of territorial segregation and separa-
tion of land rights l.During the debates preceding the adoption of this
Act, leaders of the government saicl that in the areas set aside for the
Natives "[tjhey would be able to tax themsclves and govern themselves
under the control of the white man", and that "his [the Native's] position
would become stronger and stronger, and he would be able even to have a
continually grouring rneasure of self-government within that territory" '.
The Schedule to the Act contained descriptions of areas known as
Scheduled Native Areas. These areas comprised the then existing Native
reserves and locations, together with certain land held by Native tribes,
communities and individuals. The Act prohibited, without the consent
of the Governor-General being obtained, the acquisition by any person
other than a Native of any land or interest in a Scheduled Native Area,
and conversely it prohibited, without such consent, the acquisition by a
Native of any land or interest in land outside a Scheduled Native Area
from a person other than a Native 2.
36. In Annea 3 to the Reply, the United Nations Special Committee
states, with reference to the Natives Land Act, that "African leaders
protested (sic) it as an unjust law directed against the vital interests of
their people" 3.The Committee,proceeds to cmphasize the restrictions
placed by the Act on the purchase of land by Natives, but ignores the
reciprocal restrictions, referred to above, placed on non-Natives 3.
iVhile it is true that sorne Natives did object to.the provisions of the
Act forbidding the acquisition of land by Natives outside Scheduled
Native Areas, Native leaders welcomed the provisions of the Act which
clearly dernarcated the reserves and forbade the transfer of such land to
non-Natives. The said objection çeemed to have ignored the Government's
expressed intention of adding substantially to the Native reserves in due
course. In fact, the Act specifically provided for the appointment of a
commission to determine what additional areas should be set aside for
Native occupation.
' 111p. 237.
Ibid.In para. 105 of Annex 3 to the Reply. IV, p. 350itis alleged that 1903
General Botha, who was to becorne the first Prime hlinister ofthe Union of South
Africa. declsred that "he would, if necessary, break up the areas of land reserved for
the Natives (including the Protectorates),in order to provide labour for the mines
and farms". The source cited in the said Annex (IV, p350, footnote 4)isan article
by Julius Lewin in The PoliticalQua~te~ly,Jan.-Mar. 1957,p. 67. Lewin, however.
cites no source to substantiatehis statement that General Botha used the words
quoted above. and it has consequently been impossible for Respondent to establish
whether General Botha in fact made the said statement, and ifsa, in what context.
It should be observed, however, that this alleged statement is diarnetrically opposed
to the known views of General Botharegarding the Native reserves, as is eyidenced
byhis speeches during the debates on the Natives Land Bill. Thus. for instanche
stated thaC "[slome people thought the solution of the Native question meant the
finding of sumcient labour for their requirementHe wished to tell these people at
once that they could not supply their labour by means of 1egislation"-W. of S.A.
Pari. Dcb., House ofAssembly (rgr3). Col. 2514. '.
' TV,p. 351 (para. 107). KEJOISDER OF SOUTH AFIiICA 483
As was pointed out in the Counter-Memorial, the reports of the Native
Lands Commission-appointed in terms of the Act-and of five local
committees later culminated in the passing of the Native Trust and Land
Act of 1936, the object of which was-
". . .to provide further areas whcre the Natives can maintairi a
reasonable standard oi life and develop their own institutions, and
secure a better adjustment of the relations between white and
black l."
In implementation of this object. the Act created the South African
Native Trust, xvhichwas to be the agency to acquire furtiier areas total-
ling over 7 million rnorgen for transfer to the Native reserves. The Trust
has consistently worked towards this end, and, as has been pointed out,
has to date acquired a further 5,393,730 morgen for the sole use and occu-
pation of the Rantu '.
37. In view of what has been stated above, and also in the Counter-
BIemonal regarding the establishment of homelands in South Africa 3,
Respondent submits that there is no substance in the suggestion thatthe
founders of the Union paved the way for the establishment of "a caste
:systemW which has been maintained through the years 4.
F. CONCLUSION
38. In the Ioregoing paragraphs Respondent has deaIt briefly with
Applicants' version of historical events in South Africa and withreferences
to such events in the extract of the Report of the United Nations
Special Committee, being Annex 3 to the Reply. Respondent has demon-
strated that there is no substance in allegations such as that South Africa
was already effectively occupied by indigenous inhabitants at the time of
the arriva1 of the first White settlers; that the Europeans proceeded to
take occupation of non-whiteland; that thevoortrekkers orthe founders
of the Union established and maintained "a caste system", and that the
Natives have been progressivel~ confined to limited areas of land. It
follows that the assertions that Reçpondent has createda ". . .false im-
pression .. .of a kind of historic 'separateness' or a$artheid" =,and that
". .. the traditional geographical separation is mainly a restriction on
landownership imposed by the Government" 6,are likewise unfounded
.and without substance.
- -
1 VideIII, p. 238.
2 Vide sec.E.Chap. V, para. IS. supra.
3Counter-Mernorial, Book lV, Chaps. IV toVII.
'IV! pp. 461-462.
Ibrd.. pp.458-459.
'6Ibid., p.351.
Rejoinder filed by the Government of the Republic of South Africa