Laws and Practices Established in Namibia

Laws and Practices Established in Namibia by the Government of South AfricaWhich are Contrary to the Purposes and Principles of the Charter of the UnitedNations and to the Universal Declaration of Human RightsReview and Digest prepared by Elizabeth S. Landis*Issued by the Office of the United Nations Commissioner for Namibia 18December 1975*Attorney, Legal Consultant to the Commissioner for Namibia83-19916ridopb VIgne Collection

iTABLE OF CONTEiUTSPageIntroduction ............ .......................... .PART I. SCOPE OF THE REVIEW .................. & .A. Limitations on the review ............... . .B. "Laws" defined . ......... ......................C. Laws analyzed by source and date .. .................1. General .......... ........................2. Laws discussed in the digest .............Technical supplement .....................PART II. LAWS "ESTABLISHED" IN N!MIBIA: ASSU14PTIONS,CONS2QUENCESA. Legislation invalid under international law ........1. Post-revocation laws .................2. Pre-revocation laws . ...... ..................B. Legislation invalid under municipal law ... ...........1. Conpetence. of the lawmaker .2. Proper application of laws .3. Proper promulgation of laws .C. Conclusions affecting the digest Technical supplement ......... PARTIII.DIGEST ..................List of Laws Digested ...........Preface to Digest ... ...........Acts of Parliament .........Territorial Ordinances .......Proclamations .... .............Appendix I FINANCIAL REARRANGE0TNTS EFFECTED BYSOUTI-WEST AFRICA AFFAIRS ACT, No. 25 of AND THEIRCONSEQUENCES ... ..... ....Analysis of Section 22 ...........

Comments on Section 22 (2) ........ .Summary of the consequences of the financial"rearrangements" ....... . .....THE 1969,*. 12 2 23 3 3'4 55 56 6 7 78 9 9124 * .' 12417 * . 18* . 220268367 . . 368* 371* 376Annex I ........ ........................ . . 377Annex II . . . . . . . . . . . . . . . . . . . . . . . . . . .380

Appendix II PURPCRTZD ]vIPEAL OF PASS LAWS ............ 382Appendix III JOTE ON FFACTICES- "ESTABLISHED" !N :A!'TBIA-. Cc'T!-]ARY 'O C;i.R'iIR PURPOS ES AND PR38C39L£S . 3PANT IV. ID;XES AN D B]BL!OGHA-PHiIC .OTE ............... 4O0Biblio valhic Note . . . . . . . . . . . . . . . . . . . . . .. . 100Index to Acts of Parliaent applied or purportedlyapplied to lamibia ........... ...................... 402Index to Laws Cited .... ................... .......... 436Index to Cases Cited ........... .............. ..... ..442S'ubject index .......................... 43

REVIEW AND DIGESTLaws and Practices Established in Namibia by theGovernment of South Africa Which are Contrary to the Purposesand Principles of the Charter of the United Nations and to the UniversalDeclaration of Human RightsIntroductionThis review and digest has been prepared for the United Nations Commissionerfor Namibia, at the request of the United Nations Council for Namibia, to enableit to fulfil its mandate under paragraph 9 of General Assembly resolution 2288(XXII), to "take urgent and effective measures to put an end to laws and practicesestablished in the Territory of South West Africa by the Government of SouthAfrica contrary to the purposes and principles of the Charter." It was originally

prepared for the use of the Council for Namibia in October 1972, andsubstantially revised and updated in 1975.The study is divided into four parts:I. A short recapitulation of decisions relating to the scopeof the review and digest which have already been set outin preliminary and interim reports to the Council.II. An analysis of the meaning of laws "established" in Namibiaand of the consequences thereof.III. Digest of the laws covered by the study, with appendices.IV. Indices to the study and bibliographic note.UWhenever necessary, "technical supplements" have been appended to explainthe rationale for certain conclusions or to provide background or cognateinformation or for related purposes.

- 2-PART I. SCOPE OF THE REVIEWA. Limitations on the reviewThis study is, for practical reasons discussed in preliminary an%. interim reportsto the Council ,"'generally limited to laws, ratier than ?ractices,established inNamibia. An appendix to Part III, however,-ontains notes on certain practices established in the Territory.,Again for practical reasons -- to reduce the study to manageableproportions and to prevent dissipation of efforts over too wide a field -the studyhas been limit'ed to laws which fall under tbe following classifications :1/(1) "constitutional" laws, i.e., those which establish the fundamental structure ofthe Namibian administration and define itsrelationship to the Republic; regulate the franchise; andestablish the mechanisms for the government of the population;(2) repressive laws, which violate the Universal Declaration of Human Rights;(3) laws which explicitly impose or sanction racial discrimination; and(4) certain other laws relevant to Council programmes or purposes.The digest contains all major constitutional and repressive legislation up to theend of 1974. However, laws mandating or permitting racial discrimination are sonumerous that the digest contains only a sampling of the most flagrant and themost typical; they consist mostly of recent legislation enacted by Parliament. Anappendix to Part III covering certain' discriminatory practices "established" inNamibia conlaLins references to numerous other discriminatory laws.B. "Laws" defined"%aws", as used in this study, include: Acts of the South African Parliament;proclamations of the State President (formerly the Governor-General);ordinances.of the territorial Legislative Assembly; proclamations of the territorialAdministrator; and sub-legislation under the foregoing, all as interpreted bycompetent judicial authorities. Except when the context otherwise requires, theterm "South African laws (or legislation)" is used in this study to encompass all orany of the types of laws listed above and does not distinguish between Union orRepublic laws on the one hand and territorial enactments on the other.

Proclamations of the State President include proclamations of the Governor-General and vice versa.1/ There is some overlap among the classifications.

-3-C. Laws analyzed by source and date1. GeneralBefore the legislative "rearrangement" effected in 1969 / the number ofSouth African -- as opposed to territorial --- laws which appiied to Namibia wasnot great; however, it was slowly growing as the South Africap governmentsought increasing uniformity in law and practice between its four provinces andthe Territory. Since the rearrangement the number of South African statutes, bothnew and existing, which have purportedly been applied to Namibia, has increasedenormously.2. Laws discussed in the digestOf the laws discussed in the digest over one-half are Acts of Parliament, andapproximately one-third of the remainder are proclamations of the State President.The digest includes relatively few territorial laws, in part because somany have been repealed or superseded by South African statutes recently appliedto Namibia. In addition, during the late 1960s the South West Africa OfficialGazette the only official source for territorial legislation of that period, did notcirculate outside the Territory and Republic. Consequently, much recent territoriallegislation 3/ is known only through utterly inadequate newspaper reports. Thedigest does not attempt to analyze any legislation of which the complete text wasnot available, although reference to the existence of such legislation may be foundin the digest and elsewhere in this review."Homeland" enactments, all of which are post-mandate, are not analyzed in thedigest because they do not come within the scope of the study.- Constitutional lawsConstitutional laws are South African in origin, since they involve,directly or indirectly, the mechanisms by which South Africa imposes its controlof the Territory. They generally postdate the revocation of the mandate; the bulkof earlier constitutional legislation was replaced to implement changes requiredby the so-called Odendaal Plan, L/ which was approved only shortly before thedecision in the South West Africa Cases 51 and the adoption of GeneralAssembly resolution 215 (XXI).- Repressive legislationMost repressive legislation -- the major exception being the "pass laws" -- isSputh African, rather than territorial, in origin. Much of it dates fromV2 By the South West Africa Affairs Act, No. 25 of 1969, smalyzed in thedigest. 3/ E.g., Peri-Urban Development Board Ordinance.Report of the Commission of Enquiry into South West Afrrca Affairs 1962-63,R.P. No. 12/1964.VI South West Africa, Second Phase, Judgment, I.C.J. Reports 1966, p. 6.

the 1950s. However, three of the best known laws -- the Suppression ofCormunism Act, §/ the Terrorism Act, 7/ and the "BOSS Act" 8/ -- were allpurportedly applied to Namibia after revobation of the mandate.- Discriminator~y legislationBefore the legislative rearrangement of 1969 most of the subjects to vhich raciallydiscriminatory legislation applied were within the jurisdiction of the territorialAdministration and governed by ordinance or, in some cases, by proclamation ofthe Administrator.Since the rearrangement, however, most of these subjects are reserved toParliament. South African statutes have already been extended to cover many ofthem.PART ITechnical supplementIt should be noted that the list of acts applied to Namibia before revocation of themandate excludes all acts which have since been repealed (and, in many cases,replaced by substantially identical post-revocation legislation). It also excludeslegislation (e.g., the Suppression of Communism Act, No. 44 of 1950) which wasapplied to the Territory before revocation by a clause which was repealed andreplaced after revocation of the mandate: such legislation is not validly in effect inthe Territory (see discussion in Part II).The withdrawal of the territorial Official Gazette from normal circulation wasapparently a matter of official policy, as libraries all over the world were cut offthe mailing list at the same time and were unable to obtain the Gazette from anyregular source.fi Act No. 44 of 1950./: Act No. 83 of 1967.Act No. 101 of 1969, sec. 29.

-5-PART II. LAWS "ESTABLISHED" IN NAMIBIA:ASSUMPTIONS, CONSEQUENCESIn a practical sense the laws "established" In Namibia contrary to the .urposes andprinciples of the United Nations Charter include all those which are enforced bythe South African occupying authorities, regardless of their origin, form, or legalsufficiency. This practical interpretation has been followed in determining whichlaws should be included in the digest.As a matter of law, however, the laws established in Namibia contrary to theCharter fall into distinct classes, which have very different legal consequences:(i) laws which are, by reason of legal deficiency, not validly in effect in theTerritory although enforced by occupation officials; and (ii) laws validly in effectin the Territory although contrary to the Charter. Laws not validly in effect in theTerritory may be further subdivided according to their basic legal deficiency intothose which are invalid under the principles of international law and those whichare invalid in terms of municipal (i.e., South African) law. The digest indicates,subject to the limitations discussed below, which laws analyzed in the digest are

not validly in effect in Namibia. 1/ The consequences of such invalidity arediscussed below in Part II.A. Legislation invalid under international law1. Post-revocation lawsAll laws enacted and/or purportedly applied to Nanibia since the revocation of themandate by General Assembly resolution 2145 (XXI) are invalid insofar as theirapplication to Namibia is concerned.This position and the reasoning supporting it were discussed briefly in paragraphs97-100 of the Council's 1971 Report to the General Assembly. The generalreasoning was subsequently confirmed by the International Court of Justice in itsAdvisory Opinion of 21 June 1971 on Namibia.In summary, the position is that upon the adoption of resolution 2145 (XXI) SouthAfrica lost its only right -- i.e., as mandatory power -- to occupy, administer, andlegislate for Namibia. Its status in international law thereafter became that of ausurper from the international community, an illegal occupier without colour ofright, whose post-revocation laws and acts were void ab initio vis-a-vis Namibia.The invalidity of South African laws vis-a-vis Nawbia does not arise, it "ould benoted, from the Opinion of the International Court, wlich merely confirmed theprinciple of international law applicable to the Namijbian situation. Nor does itdepend on any formal action by the Council, althougi the Council can1/ For relevant commentary in the 1971 Advisory Opinion of the InternationalCourt of Justice, see technical supplement, A.1.

-6-give publicity to the applicable rules of international law and bring, them to theattention of persons who might otherwise (choose to) remain ignorant of the legalconsequences of South Africa's illegal occupatio of Namibia.The identification of the laws enacted since revocation of the mandateis generally simple: the date of pronulGation or the effective date, whichever islater, is determinative. Under international law, if this date is 27 October 1966 orlater, the law is invalid vis-a-vis Namibia despite any provision purporting toapply it to the Territory.The identification of laws purportedly anplied to Namibia since revocation of themandate is equally straightforward in principle: any law, whatever its owneffective date, which is purportedly applied to Namibia by a post-revocationlaw, 2/ is included: and its purported application is therefore void in law.2. Pro-revocation lawsWhile all post-revocation legislation established in Namibia is automatically,by operation of international law, void as to Nanibia, it does not follow that allpre-revocation legislation established in Namibia before the adoption ofresolution 2145 (XXI) is necessarily valid there.A serious argument can be made that all, or at least some, of the prerevocationlaws which are contrary to the purposes and principles of the Charter are alsocontrary to the general welfare clause (article 2, second paragraph) of the mandateagreement. 3/ It would follow, therefore, that they were invalid underinternational law as orthe time of their enactment (and, of course, remain so). No

attempt has been made, however, to identify such laws in this study. It should benoted that, whatever the validity of pre-revocation legislation at the time of itsenactment, its implenentation or enforcement by South African authorities hasbeen unlawful since the revocation of the mandate.B. Lenislation invalid under municipal lawAlthough the South African government rejects the principles of international lawaccording to which post-revocation legislation is not valid in Namibia, it acceptsthe general principles of municipal law that legislation is not valid in 11amibiaunless: (i) the legislator was competent to enact the law in question; (ii) the lawwas properly applied to the Territory; and (iii) the law was properly promulgated.The tests As to competence, proper application, and proper promulgationare not identical for all types of legislation.g_/ E.g., Pneumoconiosis Compensation Laws Amendment Act, No' 95 of 1972,purportedly applying itself and seven other laws, the oldest from 1962, toNamibia.Vf "The Mandatory shall promote to the utmost the material and the moralwellbeing and the social progress of the inhabitants of the territory subjectto the present Mandate."

-7-1. Comjetence of the lawmakerThe cor.petence of Parliament -- in terms of municipal law although not, asindicated above, under international law - is to all intenis and purposes unlimited.14 That of other lawmakers is determined by the statutes empowering them tolegislate or to issue sub-legislation. Laws enacted O issued by any of the lattermay be held ultra vires by the courts. 5/2. Froner aDDlication of lawsAs a result of the constitutional development of the South West Africa mandate, ifa law is to apply to all of N,%-mibia, it must be made applicable to the Territorygenerally and also to the Eastern Caprivi Zipfel.- A.olication of Acts of Parliament to the Territory F enerallyAlthouZgh the South West Africa mandate empowered the then Union toadminister and legislate for its mandated territory as an "integral part" of its ownterritory, South African statutes have never applied automatically to the Territoryas they do to the provinces. Consequently, an Act of Parliament applies to l.nibiaonly if it has been made applicable by specific words or, in certain eases, by"necessary intendment". 6/It seems to be established now that if a statute applies to Nanibia, amendments toit also apply to the Territory even if they do not so state and if the principal lawdoes not so state. 7/ Frequently, however, the clause applying a law to Namibiaprovides that all amendnents thereto also apply.Certain other questions concerning the applicability of Acts of Parliament to theTerritory are discussed in the technical supplement.- Apnlication of laws to the special enclavesActs of Parliament and territorial ordinances apply to the Eastern Caprivi Zipfel(or Strip) only if expressly made applicable thereto. This rule has been in effect as

to all such legislation applied to the Territory since 1 i:ovember 1951. 8/ Thetechnical supplement sumarizes the various rules as to applicability of earlierlegislation.1_1 With minor exceptions, South Africa follows the English doctrine ofParliamentary supremacy, See S. v. Tuhadeleni, 1967 (4) S.A. 511 (T), aff'd.1969 (1) S.A. 153 (A.D.), as to conflict with international law. Forcertain exceptions see the technical supplement to this section.j/ Parliament may retroactively validate ultra vires legislation. See, e.g.,General Law Further Amendment Act, No. 93 of 1963, sec. 93.6_/ Hahlo and Kahn, The South African Legal System and its Bockground 162(Jut&1968).7/ R. v. NItoni, 1961 (3) S.A. 507 (S.W.A.), overruling R. v. Veibas, 1958 (4)S.A. 319 (S.W.A); Hahlo and Khan, supra n. 1, at 162, note 5.8/ South-West Affairs Amendment Act, No. 55 of 1951, see 3 (3), now replacedby Act No. 39 of 1968, sec. 38 (5) (substituted by Act No. 25 of 1969,sec. 17).

-8-Under the 1923 agree:ment between officials of the Fehoboth Gebiet and theAdministrator of the Territory 9/ Acts of Parliament and territorial ordinancesapply to the Gebiet only if they are specifically extended thereto by proclauationof the Administrator (or, by implicit exception to the terms of the agreement, ifthe legislation is declared to apply to-.the Gebiet). In 1968 this provision was heldinvalid by the Appellate Division, 10/ which ruledthat statutes applying to the'Territory generally apply autonTatically to the Gebiet.ii/ For practical purposes, therefore, South African laws which purportedly applyto the Territory generally also apply to the sane extent to Gebiet.Since 1922 Acts of Parlia:,ent applicable to the Territory have appliedautomatically to Walvid Bay, LJ/ which is treated by the South Africangovernment as an integral part of "amibia and which has, by operation ofinternational law, become a part of the Territory. By terms of the Act whichcreated the Legislative Assem!bly, all territorial ordinances apply to W-falvis Bayautom.atically. L/3. Proper promulpation of lawsProper promulgation of lavs involves making them known to the public ina specified manner, normally by publication in specified official or officiallydesignated Journals or books. No question appears to have been raisedconcerning promulgation of laws applied to :;aibia since it was provided that Actsof Parliament could be properly prormulgated in the Territory by publication inthe South African Government Gazette only, instead of requiring publication inthe South West Africa Official Gazette as well. L/2/ Agreenent appended to Procla-nation No. 28 of 1923. See secs. 4 and 5 of theagreement.

10/ S. v. Bock, 1968 (2) S.A. 658 (A.D.). LI This post-revocation Judicialdecision, itself void and ineffective vis-avis the Territory, could not actuallychange the law in effect in theTerritory, while this law is itself no longer valid. However, the present reviewtakes due note of the position thus established in terms of the lawpurportedly applied.The validity of these sections of the aCree-ent had been upheld earlier inUniversal Distributors (Pty.) Ltd. v. Dickson, 19h9 (4) S.A. 331 (S.W.A.). TheUniversal Distributors case deternined the law as of the date of the revocation ofthe mandate, and S. v. Bock was ineffective to overrule it as toNamibian law thereafter.12 The South-11West Africa Affairs Arendment Act, No. 28 of 1944, sec. 1,substituted a new sec. 1 (4) to that effect in the South-West Africa Affairs Act,No. 24 of 1922, and made the substituted section retroactive to 1922.Act No. 42 of 1925, sec. 43 (amended by Act No. 38 of 19,i, sec. 6 (7)); nowreplaced by Act No. 39 of 1968, sec. 36.i1_/ See South-West Africa Constitution Act, No. 42 of 1925, sec. 44 (5), assubstituted first by Act No. 23 of 1949, sec. 22,and subscqiuently by Act 1o. 55of 1957, sec. 1. The latter provision is incorporated in section 37 (5)of Act No. 39 of 1968, which replaced the 1925 Act.

-9-C. Conclusions affecting the digestThe digest includes all laws (within the scope of this study, as defined in Part I)which are "established" in Nanibia contrary to Chazter purposes and principles,whether or not they are validly in effect in ]amiita.Laws which, according to international law, were void vis-a-vis IVamibia at thetime of enactment because purportedly applied to the Territory after revocation ofthe mandate are so indicated in the digest. The index in Part IV to Acts ofParliament applied or purportedly applied to Namibia also indicates whether theindexed laws were ever validly in effect in Namibia in terms of international law.The digest does not ordinarily indicate whether laws have been validly applied toNamibia in terms of municipal law. In general, the assumption has been made thatif the South African government has clearly treated laws as applicable to !'amibia,South African courts would, if the question arose, ratify the government position,as in S. v. Bock. L/The digest does indicate, however, whether Acts of Parliament have beenexpressly made applicable to the Eastern Caprivi Zipfel. With certain exceptionsr.s to early statutes, it can be assumed that any statute not expressly stated to beapplicable to the Eastern Caprivi Zipfel is not in effect there.PART IITechnical supplementA. 1. Invalid legislation: post-revocation lawsThe position argued above was confirmed in paragraph 133 (2) of the 1971Advisory Opinion of the Court.

In discussing the obligation of states not to recognize post-mandate acts (whichinclude legislation) of the South African government taken on behalf of orconcerning Namibia, the Court in paragraph 125 stated " .... while official actsperformed by the Government of South Africa on behalf of or concerningrTamibia after the termination of the Mandate are illegal and invalid, thisinvalidity cannot be extended to those acts, such as for instance, the registration ofbirths, deaths and marriages, the effects of which can be ignored only to thedetriment of the inhabitants of the Territory." The Court did not state whether anyof the laws purportedly applied to Namibia were covered by this; furthermore, itdid not suggest that the acts were not invalid, merely .that states should not act inrelation to them in such a way as to deprive the people of Namibia of "anyadvantages derived from international co-operation."Post-revocation legislation is, of course, valid insofar As it applies to the Republicunless it suffers from defects other than those discussed under A.l.j 1968 (2) S.A. 658 (A.D.).

- 10 -Identification of laws enacted since revocationSome South African laws have been declared to be effective retroactively,occasionally to a date prior to revocation of the mandate. For example, theTerrorism Act of 1967 was declared to be in effeet as of June 1962. It is assumedthat post-revocation leGislation, which I-u invalid vis-a-vis Namibia as a matterof law, cannot by its own provisions transform itself into valid pre-revocationlegislation by establishing a fictitious effective date prior to promulgation. Thecreation of a crime or the increase in criminal penalties ex post facto, which isinvolved in the case of retroactive criminal legislation suchis the Terrorism Act, isof course also a violation of the Rule of Law.B. 1. Municipal law: conpetence of the lawmakerAlthough the supremacy of Parliament is usually described as total,the so-called "Coloured voters" cases, beginning with Harris v. Minister ofInterior, 1952 (2) S.A. 128 (A.D.), established one quasi-exception. The ruling ofthe case, insofar as Coloured voters were concerned, was eventually reversed byParliament; but the principle as to limitations on Parliament was retained and stillapplies to the remaining entrenched clauses of the South African constitution.The Governor-Generalhad plenary power to legislate for the Territoryby proclamation from the date of the South African occupation of the protectorateof German South-West Africa until his powers were abrogated by UnionProclamation No. 235 of 1951. During the sae period the Administrator hadvirtually the same powers, delegated to him by the Governor-General. TheGovernor-General's legislative powers were derived from the Treaty of Peace andSouth West Africa Mandate Act, No. 19 of 1919, extended by Act 17o. 32 of1921, until their abrogation by the 1951 Proclamation.On 1 November 1951 the power of the Governor-General to legislate byproclamation was restored as to all subjects not within the jurisdiction of theterritorial Legislative Assembly. (Act No. 55 of 1951, sec. 2, replaced by Act No.39 of 1968, sec. 38 (1)). He was also granted plenary power to legislate for the

Eastern Caprivi Zipfel by Act No. 55 of 1951, sec. 3, replaced by Act No. 39 of1968, section 38 (3); this provision was repealed by sec. 18 (1) (a) of the NativeNations Act, No. 54 of 1968, which, however, simultaneously granted the StatePresident plenary power to legislate for any of the homeland areas (see. 14).Of course, proclamation laws issued by the State President cannot conflict with orsupersede Acts of Parliament. (Act No. 39 of 1968, sec. 38 (2); Act No. 514 of1968, sec. 15).Although section 37 (6) of the 1968 Constitution (replacipg section 44(6) of the 1925 Constitution) provides that no ordinance may Ue "repugnant to orinconsistent with" an Act of Parliament applicable to Dmiibia, retroactivevalidation of an ordinance which would otherwise be ultra vires is possible, asindicated in note 5 above. The law referred to in that note provided

- 11 -that:The Legislative Assembly of the territory of South West "ifricais hereby empowered and shall be deemed to have had at i1l timesthe power, to reeal by ordinance, subject to such savirgs asmay be specified in such ordinance, the Publication of BannsAnendctent Act, 1945, in so far as it still applied in the saidterritory.A 1ication of statutes to the Territory generallyAn Act of Parliament may be made applicable to the Territory in one of thefollowing ways:it may legislate expressly for the Territory (e.e., South-West AfricaConstitution Act, No. 39 of 1968);a clause in the statute to be applied to Namibia nay provide that thelaw or a portion thereof shall apply to the Territory (e.g., Admissionof Advocates Act, No.74 of 1964, sec. 12);a clause in one law may provide that another law, or a portion ofanother law, shall apply to the Territory (e.g., PneumoconiosisCompensation Laws knendment Act, No. 95 of 1972, sec. 8);a clause in one law may provide that the State President may applythat law, a portion thereof, or another law to the Territoryby proclaemation, and he issues such a proclamation (e.g.,Medical, Dental, and Pharmacy Act, N;o. 13 of 1928, sec. 99 (1),applied by Union Proc. No. 3 of 1929);the State President may make laws for the Territory under his powersgranted by the South-West Africa Constitution Act, No. 39 of1968, see. 38 (1);the definition of "the Republic" (or "the Union") may state that itincludes the Territory of South-West Africa (e.g., Customs andExcise Act, No. 91 of 1964, sec. 5); orthe definition of "the Republic" (or "the Union") may state that itincludes "any territory in respect of which Parliament is competent to legislate...." (e.g., Aviation Act, No. 74 of 1962,

sec. 1).Apmlication of laws to the Eastern Caprivi ZipfelThe Eastern Caprivi Zipfel is defined in Proclamation No 117 of 1939as "that portion of the Caprivi Zipfel which lies to the East of a line

- 12 -running due South from Beacon No. 22 situated on the border between thesaid 1'4andate Territory and Angola ..." In other words, it comprises all the landeast of a north-south line running just to the west of the Kwando River.Before the enactrent of Act No. 55 of 1951, which proviied that statutes andordinances would apply to the Eastern Caprivi Zipfel onli if made expresslyapplicable thereto, the entire Caprivi Strip had been treated identically forlegislative purposes. Thereafter, the western portion of the Strip was treatedsimply as part of the Territory while the Eastern part was treated as a uniqueleEislative entity.(It should be noted that Proclamation No. 147 of 1939 transferredadministrative control of the Eastern Caprivi Zipfel from the Administrator to thethen Minister of Native Affairs, and Act No. 55 of 1951, section 4, transferred theEastern Caprivi Zipfel from the jurisdiction of the then High Court of South 'RestAfrica to the Transvaal Provincial Division.)'The application of laws to both parts of the Caprivi Strip prior to 1951 may besurmarized as follows:Prior to 1 January 1921 laws applicable to the Territory applied also to the entireCaprivi Zipfel.From 1 January 1921 to 1 September129 laws applicable to the Territory did notapply to the Caprivi Zipfel.Proclamation No. 23 of 1922, made effective as of 1 January 1921, provided thatthe Caprivi Zipfel should be administered as part of the adjoining BritishBechuanaland Protectorate; section 3 of the Proclamation provided that no lawsthereafter made for South West Africa should apply to the Caprivi Zipfel. Section43 (b) of the South-.,est Africa Constitution Act, No. 42 of 1925, as originallyenacted, provided that the Caprivi Zipfel should not form part of the mandatedterritory for purposes of the Act.From 1 September 1929 to 1 November 1951 laws applicable to the Territoryapplied to the entire Caprivi Zipfel.. Proclaation No. 26 of 1929 repealed Proclanation No. 23 of 1922 andprovided in section 2 that all laws made for the Territory should apply to theCaprivi Zipfel. Section 43 (b) of the 1925 Constitution was repealed by Act No.38 of 1931, section 6 (7).Proper promulgation of lawsSection 41 (5) of the 1925 Constitution, as aniended by Act No. 23 of 1949,section 22, required publication in the South 'Vest Africa Official Gazette of anyAct of Parliament intended to apply to the territory. After a few embarrassinglapses, this provision was amended by AciNo. 55 of 1957, section 1, to providethat publication in the South African-overnment Gazette would be deeedpublication in the Official Gazette.

- 13 -Section 411 (1) of the 1925 Constitution Act, as originally enacted, required thatproclar.ations of the Governor-General be promulgated by publication in theOfficial Gazette. The substitution of a.new section 44 by Act No. 23 of 199, sec.22, appears to have terminatedthat requirement. (The Governor-General's plenarypower to issue procla.ations, the pronulSation of which section h4 (1) hadoriginally re-Lulated, was abrogated in 1951).Section 2 of Act lb. 55 of 1951, which en'.owered the Governor-General to issueprocl~nations as to subjects not under the jurisdiction of the territorial LegislativeAssembly, required such proclamations to be published in both Gazettes, and thisprovision was incorporated in section 38 (1) of the 19630 South-,'est AfricaConstitution. However, that section was amended by Act No. 25 of 1969, section17, to require publication in South African Government Gazette only..Section 3 of the Act No. 55 of 1951, which gave the Governor-Generalplenary power to legislate by decree for the eastern Caprivi Zipfel, required thatall proclamations be published in both Gazettes. This requirement was retained insection 38 (3) of the 1968 Constitution Act. However, section 38 (3) was repealedby the Native 'Aations Act, No. 54 of 1968, which sipnultancously conferred onthe State President the power to leZislate by decree for any territorial homeland;section 14 (1) provided that such proclamations could be prorulgated by simplepublication in the South African Government Gazette.

- 14 -PART III. DIGEST List of Laws DigestedAct of ParliamentAdzission of Persons to the Republic Regulation Act, No. 59 of 1972 Age-Persons Act, No. 81 of 1967 Aliens Act, No. 1 of 1937 Bantu Affairs Act, No. 55of 1959 Bantu Education Act, No. 47 of 1953 Basters of Rehoboth Education Act,No. 85 of 1972 Blind Persons Act, No. 26 of 1968 "BOSS Act", No. 101 of 1969,section 29 Coloured Development Corporation Act, No. 4 of 1962 ColouredPersons in South-West Africa Education Act, No. 63 of 1972 Companies Act, No.61 of 1973 Customs and Excise Act, No. 91 of 1964 Deeds Registries Act, No. 47of 1937 Departure from the Union Regulation Act, No. 34 of 1955 Developmentof Self-Government for Native Nations in South-West Africa Act, No. 54of 1968Disability Grants Act, No. 27 of 1968 Electoral Consolidation Act, No. 16 of1946 General Law Amendment Act, No. 102 of 1967, section 22 IdentityDocuments in South-West Africa Act, No. 37 of 1970 Land Bank AmendmentAct, No. 31 of 1969 Legal Aid Act, No. 22 of 1969 Nama in South-West AfricaEducation Act, No. 86 of 1972 Namaland Consolidation and Administration Act,No. 79 of 1972 Newspaper and Imprint Registration Act, No. 63 of 1971 OfficialSecrets Act, No. 16 of 1956 Police (South-West Africa) Act, No. 19 of 1939Prisons Act, No. 8 of 1959 Provincial and the Territory Service Pensions Act, No.14 of 1969 Public Safety Act, No. 3 of 1953 Publications Act, No. 42 of 1974Rehoboth Investment and Development Corporation Act, No. 8 of 1969 Republic

of South Africa Constitution Act, No. 32 of 1961, section 13 "Sabotage Act", No.76 of 1962, section 21 South African Citizenship Act, No. 44 of 1949 South-WestAfrica Affairs Act, No. 25 of 1969 Soith-West Africa Affairs Amendment Act,No. 23 of 1949 S61ith-West Africa Affairs Amendment Act, No. 55 of 1951South-West Africa Bantu Affairs Administration Act, No. 56 of 195k Soxah-WestAfrica Constitution Act, No. 39 of 1968 Suppression of Communism Act, No. 44of 1950 Supreme Court Act, No. 59 of 1959 Territorial Waters Act, No. 87 of1963 Terrorism Act, No. 83 of 1967 Treaty of Peace and South West AfricaMandate Act, No. 49 of 1919Unlawful Organizations Act, No. 34 of 1960

- 15 -War Pensions Act, No. 82 of 1967War Veterans' Pensions Act, No. 25 of 1968 Workmen's Compensation Act, No.30 of 194106:dinancesAdministrator's Legislative Powers Ordinance, No. 20 of 1952 C61ouredDevelopment Corporation Powers in the Territory Ordinance, No. 28of 1966Criminal Procedure Ordinance No. 34 of 1963 Delegation of Powers Ordinance,No. 21 of 1960 Establishment of an Elected Coloured Council for South WestAfrica Ordinance,No. 29 of 1966Establishment of Local Government in Coloured Townships Ordinance, No. 35 of1965Liquor Ordinance, No. 2 of 1969.Mines, Works and Minerals Ordinance, No. 20 of 1968 Prohibition of MixedMarriages Ordinance, No. 19 of 1953 Rehoboth Gebiet Affairs Ordinance, No. 20of 1961 Riotous Assemblies and Criminal Law Amendment Ordinance, No. 9 of1930. Wage and Industrial Conciliation Ordinance, No. 35 of 1952ProclamationsAdministration of the Rehoboth Community Proclamation, No. 28 of 1923 (SouthWestAfrica), ratifying agreement dated 17 August 1923Control and Treatment of Natives on Mines Proclamation, No. 3 of 1917Deportation of Undesirable Persons from South West Africa Proclamation, No.148of 1962 (Republic)Eastern Caprivi Legislative Council Proclamation, No. R. 6 of 1972 (Republic)Eastern Caprivi Zipfel Administration Proclamation, No. 147 of 1939 (Union)Employment Bureaux Regulations Proclamation, No. R. 323 of 1972 (Republic)Employment Bureaux Regulations for Namas Proclamation, No. R. 32 of 1973(Republic) Immorality Proclamation, No. 19 of 1934 (South West Africa).Kavango Constitution Proclamation, No. 115 of 1973 (Republic). KavangoLegislative Council Proclamation, No. R. 196 of 1970 (Republic)NativesAdministration Proclamation, No. 11 of 1922 (South West Africa)

NativesAdministration Proclamation, No. 15 of 1928 (South West Africa)Natives(Urban Areas) Proclamation, No. 56 of 1951 (South West Africa)Okavango Native Territory Affairs Proclamation, No. 32 of 1937 (South WestAfrica). Ovamboland Affairs Proclamation, No. 27 of 1929 (South West Africa)bwambo Constitution Proclamation, No. R. 104.or 1973 (Repuilic). 0qamboLegislative Council Proclamation, No. R. 291 of 1968 (Republic) PiohibitedAreas Proclamation, No. 26 of 1923 (South West Africa) Pi ospecting and Mining- Native Reserves, South-West Africa, ProclamationNo. 42 zof 1969 (Republic)Regulations for the Administration of the District of Ovamboland'Proclamation,No. R. 17 of 1972 (Republic)Rehoboth Affairs Proclamation, No. 31 of 1924 (South West Africa) RehobothGebiet Affairs Proclamation, No. 9 of 1928 (South West Africa)

- 16Rules of Procedure for the Eastern Caprivi Legislative Council Proclamation,No. 7 of 1972 (Republic)Undesirables Removal Proclamation, No. 50 of 1920 (South West Africa)Vagrancy Proclamation, No. 25 of 1920 (South West Africa)

- .17 -PART IIIPreface to Di .stAs indicated in Part I, this digest covers selected laws applied, or purportedlyapplied, in Namibia up to the end of 19T ;- The laws are arranged alphabeticallyby title in three groups: Acts of Parliament, territorial ordinances, andproclamations (both South African and territorial).The digest of each law indicates whether it was ever legally in effect in Namibia.(See discussion in Part II).It has not been possible to keep a complete record of all amendments to the lawsincluded in the digest. In particular, payment schedules in social legislation (e.g.,pensions, workmen's compensation awards, etc.) are frequently amended, often bysub-legislation, to reflect changes in cost of living or for other reasons; theschedules quoted in the digest are, therefore, likely to be somewhat outdated. Forreasons explained in the Bibliographic Note, the digest of territorial legislation isincomplete and omits much recent material; territorial proclamations and sub-legislation are also incomplete for the same reasons. The number of South Africanproclamations and the quantity of South African sub-legislation published in theGazettes almost guarantee that some significant legislation will be omitted.Reference in the digest to Acts of Parliament are to those laws as amended up to1968, since they are found in this form in the Consolidated Statutes in the UnitedNations library (see Bibliographic Note). Notes provide citations to subsequentamendments, which are available in the South African Government Gazettes.Many of the older territorial ordinances and proclamations, particularly thoserelating to "natives", appear to be either obsolete or superseded in fact by modernlegislation, such as the Native Nations Act of 1968. However, they have not beenformally repealed, and from time to time South African authorities resort to them

for special powers or to Justify particular actions. Consequently, the digestincludes such legislation.In general, the digest employs "State President" for "Governor-General" and"Republic" for "Union", except in certain references to older legislation. Thesesubstitutions are required by the transformation of the Union of South Africa intothe Republic in 1961.Whenever appropriate the digest uses "African" or "Black" instead of theSouth African term "Bantu" or the territorial "native". As far as these officialterms are concerned, section 16 (1) of the Bantu Laws Amendment Act changed"native" to "Bantu" in all legislation applying within the Republic an4 alsochanged accordingly the titles of departments, ministers, and other officialsdealing with Africans. South African laws established in Namibia use "Bantu";but local legislation still refers to "natives" since section 16 (1) of the 1962 Actapplies onlyin part to Namibia.I/ Act No. 46 of 1962.

- 18 -PART IIIActs of ParliamentA]X.ISSION OF PERSOSS TO THE REPUBLIC REGULATION ACTNo. 59 of 1972(Never legally in effect in .lamibia)GeneralThis statute replaces, but continues the general policies of, the muchamendedAdmission of Persons to the Union Regulation Act (cor~only called the"Immigrants Resulation Act"), No. 22 of 1913. It is designed to assure theexclusion from the Republic or any part thereof, and from the Territory, ofpersons deemed undesirable by the government.The statute should be read with the Aliens Act I/ and the Departure fromthe Union Regulation Act. 2/There are also provisions in territorial laws for exclusion of persons from Namibiaand for the deportation of "undesirables" therefrom. 3/Prohibited personsPersons who are not entitled, except by special permit, to enter or remain in theRepublic are called "prohibited persons." They may be prohibited by reason ofinherent characteristics, lack of proper documents, or failure to meet certain legalrequirements..Section 13 (1) establishes ten categories of persons to be excluded from theRepublic by reason of their inherent characteristics. Category (a) is designed toexclude nonwhites although it is not couched in terms of colour or race: it definesas prohibited all persons deemed by the 'inister of the Interior to be "unsuited" tothe requirements of the Republic, any province or the Territory "on econonicgrounds or on account of standard or habits of life." The remaining categoriescover, inter aliailliterates, public charges, convicts, prostitutes and pimps, the sickand incorpetent, persons on other governments' blacklists, etc.

Sections 32 and 140 (1) provide that persons without valid passports or otherauthorization shall be excluded. Section 33 directs the exclusion of persons whocannot meet legal requirements for admission.Burden of DroofVarious sections make it clear that a person seeking admission has the burden ofproof of establishing that he should not be excluded. /_/ Act No. 1 of 1937.?/ Act No. 34 of 1955./ Deportation of Undesirable Persons from South West Africa Procleoiation, No.148 of 1962 (Republic); Undesirables Removal Proclanation, No. 50 of 1920(SouthWest Africa).Sees. 33, 36, 37, 38.

Admission of Persons to the Republic Regulation Act- 19internal nJitrationThe Act also recognizes "prohibited persons" in respect of a particular province orof the Territory. Section 13 (1) specifically proydes that "any person ... who ...thouC-h lawfully resident in one province, enters or has entered jnother provinceLor, by interpretation, the Territori/ in which be is not-.awfully resident, shall be a prohibited person in respect of r.. such other_rovince Lor the Territory/... "Although written in general terms, the restrictions on internal migration seem tobe ained primarily at preserving the Orange Free State's pre-Union'banon nonwhite immigration. In practice these restrictions affect Coloureds andIndians only, since the novement of Africans throurhout the republic is controlledby the far more restrictive pass laws.e eoval of crohibited -ersonsSection 16 provides that "a passport control officer shall cause anyperson who is a prohibited person in respect of the Republic or any province /orthe Territory/ and enters or is found within the Republic or that province Lr theTerritory/, to be removed therefrom."Boards of appealSection 3 (1) empowers the State President to set up boards of appeal -referred tosimply as "boards" --- to determine appeals by persons who have been detained,restricted, or arrested as prohibited persons. A prohibited person is required todeposit a sum not exceeding R1,000 ($1,150), as determined by the passportcontrol officer, in order to take an appeal. 5/Procedure of boardsThe Act establishes procedures apparently designed to protect the rights ofpersons appealing to a board. However, it sets no standards to guide thedeliberations of the various boards.The decision of the majority of a board is final and cannot be appealed

to a court. 6/ However, a board may on its own motion and shall, at the request ofthe appellant or the passport control officer, decide to reserve a question orquestions of law for decision by the Supreme Court. /A passport control officer, but not an alien appellant, may seek reviewby the Appellate Division of a Supreme Court ruling on a reserved point of law. 8// Sec. 6 (.).§/ Sec. 11.I/ Sec. 12 (1)./ Sec. 12 (5), (7).

Admission of Persons to the Republic Regulation Act- 20Offenses by prohibited personsSection 22 (1) makes it an offense for a person to be in the Republic, aprovince, or the Territory if he has been previously refused permission to enter,ordered to leave, or removed from the jurisdiction in question.Section 39 (1) makes it an offense for a person who is not entitled toenter a particular province or, by extension, the Territory, to enter or be in suchprovince or the Territory without authorization to do so or without imediatelyupon arrival seeking such authorization. It is also an offense for such a person tofail to leave upon the expiration of an authorization to be in the province (or theTerritory).Removal of persons in the public interestSection 45 (1) authorizes the Minister of the Interior, notwithstandingtheprovisions of any law, "if he considers it to be in the public interest,... Io/ orderthe removal from the Republic Lor, by extension, from the TerritorJ of any personwho is not a South African citizen, and thereupon such person may, pending hisremoval, be detained in the prescribed manner."Ancillary provisionsChapters 5-10 cover ancillary provisions, including, inter alia, duties of shipmasters and immigration officers; passports; persons travelling through theRepublic; offenses and penalties; and general provisions.Application to NamibiaSection 56 provides that the Act and amendments thereto shall apply in theTerritory, including the Eastern Caprivi Zipfel.Section 1 (xiv) defines "Republic" to include the Territory of South West Africaand further provides that,"any reference to a province shall be deemed to includea reference to that territory ..." There is no other mention of the Territory in thestatute, but each reference to a province (not otherwise specified) is intended to beread, "(or the Territory)."

- 21 -Admission of Person§ to the Republic Regulation ActTechnical supplementGeneralThis Act consolidates amendments made over six decades to the original

act, which removed control of immigration from the four provinces (until recentlycolonies) and vested it in the newly established Union government. Itcontinues basic policy in all important respects, but spells it out in more detail insome cases. It also ma3:es some cosmetic improvements in procedures.In particular, the Act continues the policy, discussed under "internal migration,"of protecting the Orange Free State's barriers against entry of non-whites. It alsocontinues the extension of South Africa's immigration policy to Namibia bytreating the Territory as if it were a province for thepurposes of the Act.Prohibited personsSection 20 provides that a prohibited person is not exempt from the provisions forremoval if he was allowed to enter South Africa, a province, or the Territorythrough error, oversight, misrepresentation, etc.The true import of category (a) can be determined by reading it withsection 4 (3) (b) of the Aliens Act. That paragraph prescribes that permanentresidence permits shall be granted only to persons assimilable with the"European" (i.e., white) inhabitants of the country. Government spokesmen havealso construed immigration policy to the same effect in parliamentary debate."Literacy" is defined in terms of ability to read and write a "European" language,Yiddish being defined as a European language for that section.ExceptionsSection 11, which is entitled "Persons who are not prohibited persons," containsexceptions to the list of prohibited persons. Subsection (1) exempts diplomats;certain members of foreign armed and naval forces; Africans recruitedfrom neighbouring countries by mining companies for contract labour; and certainother special cases -- in fact, although not so identified, Indians and their families.The remaining subsections qualify the first subsection, particularly as to Indians,and create exceptions to its exceptions.Sections 36, 38, and 40 (2) provide for the temporary or conditional admission ofpersons who do not possess the requisite documents but do not appear to beinecmissible by reason of inherent characteristics.Section 19 empowers the Minister of the Interior to grant permits tocertain other prohibited persons, particularly those barred by-section 13 (1) (a),

Admission of Persons to the Republic Regulation Act- 22to enter or reside in the Republic temporarily. It appears that persoll such asArthur Ashe have been admitted under this section.Internal mnirationSection 17 provides thatAny person referred to in Chapter XXXIII of the Orange Free State LawBook Li.e., a nonwhite/ shall, notwithstanding the fact that he islawfully resident in a particular province or that he has been permittedto enter the Republic, continue to be subject in all respects to theprovisions of sections 7 and 8 of the said Chapter XrXIII, and if such person actsin contravention of those provisions, he nay be dealt with

under this Act as a prohibited person in respect of the Orange Free State.Subsection (2) of section lh provides that the exceptions granted in subsection (1)"shall not be construed as entitling ayerson to whom the provisions of paragraph(a) of section 13 (1) apply Li.e., those prohibited by reason of "unsuitability"7, toenter and reside in a province in which he was not lawfully resident before thefirst day of August, 1913L.e., the date when the 1913 I~rigrants Regulation Actreplaced provincial (former colonial) immigration legislation/."Section 39 (1) provides thatIf a person who is not entitled to enter any particular province, entersor is present in that province, without having obtained, prior toentry, a permit or other document authorizing him to enter and sojournor remain in that province, or if any such person, having entered a particularprovince without authority, fails to appear, as soon as practicableafter his entry, before a passport control officer, of if any personhaving been granted a permit to enter, sojourn or remain in any province,fails to leave that province on or before the date of expiry of suchpermit, he shall be guilty of an offense ... Land shall be removed/....Removal of prohibited personsAlthough the general wording of section 16 would appear to be broad enough tocover all prohibited persons, sections 35, 39, 41 through 46, and 55 containadditional provisions relating to the removal of particular classes of persons.The sections governing removal, read with sections 3 (1) and 6, provide for thearrest and detention of apparently prohibited persons pending removal (orfavourable adjudication by an appeal board).Boards of peMalBoards of appeal consist of three or more members, appointed for terms of nomore than two years, but eligible for reappointment. The c4airman of eachboard shall be a magistrate. /I_/ Sec. 3.

Admission of Persons to the Republic Regulation Act- 23The State President is empowered to appoint as many boards as he deemsdesirable, but it appears that the draftsmen contemplated one for each port or foreach region where several ports of entry are located.Section 6 (1) states that every person who is refused entry, except a .person wholacks a passport or other required documents, may atpeal to a board. (A personwithout documents may be admitted conditionally underspecial permit. See supra, "Exceptions.")It appears unusual to empower the passport control officer, the adverse party in aproceeding before a board, to determine the anount of the deposit required of analleCed prohibited person in order for him to bring an appeal before a board. The-deposit is intended to cover the costs of detaining the appellant, of conducting thehearing, and of removing the appellant if the appeal fails. 2/ The term "deposit"suggests that the sum should be returned to the appellant if his appeal succeeds,but the Act has no provision to this effect.

Procedure of boardsSection 7 provides for prompt hearing of an appeal; it grants the appellant theright to appear in person and to be represented by an attorney orother a.,ent. Section 8 empowers a board to sunrnon witnesses and directs that awritten record be made of their testimony. Unjustified refusal to give evidence orto produce documents and the giving of false evidence are offenses.3/An appellant is required to make an additional deposit to cover the costs of hisadditional detention if a reserved question of law is referred to the supreme court,and shall deposit with the registrar of the court an additional amount sufficient tocover court costs if a further appeal is taken to the Appellate Division. _4/Removal of persons in the public interestA person may be removed from the Republic under this section although he is nota prohibited person within the meaning of the statute. A person so removed has norecourse either to the courts or to the appeal boards which hear cases of prohibitedpersons. I/In view of the definition of "Republic" as including the Territory (sec. 1 (1) (xiv)),it seems that persons other than South African citizens may be removed fromN:amibia under the provisions of section 45 (1).? Sec. 5 (4).3/ Sec. 8 (3), (4)._ Secs. 10, 12 (3).Sec. 45 (2).

-24. -AGED PERSOIIS ACTINo. 81 of 1967, as amended (iever legally in effect in Namibia)GeperalThis Act establishes, registers, and regulates institutions for the elderly andprovides pensions for such persons.It provides minimal substantiveprovisions as to pensions, leaving virtuallyall matters in connection therewith to be determined or elaborated on byreGulation.Racial discriminationSection 20 (1) empowers the Minister to flesh out the entire Act by regulation,and subsection (3) 1/ permits different regulations to be made as to different areasor different "classes or population groups". Section 21 (1) 2/ empowers the StatePresident to assign administratioh of the Act as to Persons of one class orpopulation group to one Minister and as to one or more other classes orpopulation groups to one or more other -1inisters.Aglication to the TerritorSection 21A 3/ makes the Act and amendments applicable to the Territory,including the Eastern Caprivi Zipfel. The 1971 Amendment Act V/ repeals theSouth 'est Africa Social Pensions Ordinance of 1965 insofar as it related topensions for the elderly.= Substituted by Act No. 14 of 1971, see. 3 (b).Substituted by Act No. h of 1971, sec. 4. Added by Act N6. 14 of 1971, sec. 5.

See. 6 (1).

- 25 -Aetd Persons ActTechnical suplem.entRacial discrii-ination: definitionsAs originally enacted, the statute contained definitions of whites, Bantu,Coloureds, Chinese and Indians. These definitions were removed 1/ when the Actwas made applicable to lamibia. Apparently this deletion was made to try tocreate the illusion that the Act is non-discriminatory, an illusion wbich wouldbolster the South African position internationally when the question of K:amibiawas before the International Court. 2/Racial discrimination: different regulationsThe effect of sections 20 (1) and (3) and 21 (1) is to make possible discriminatoryadministration of the Act although the Act does not appear to sanctiondiscrimination: Read together, these sections enable the various Ministers chargedwith administering the Act as to different "population" (i.e., racial) groups to hidethe fact that different regulations apply to different races by printing theregulations in different issues of the Gazette on different dates under differentdepartmental headings.Racial discrimination in practiceOpposition M.P.s have repeatedly claimed that social benefits, such as old agepensions, are paid to whites, Coloureds and Asians, and Africans on a 4-2-1 ratio,.2/ althouGh government spokesmen have denied this. V_/It is possible that old age pensions for Africans do not even equal onequarterthose paid to whites: Mrs. Suzman pointed out early in 1971 that the maximummonthly old age allowance for a Black-was R5.00 ($5.75), payable every twomonths. /i_/ Act No. 11 of 1971, sec. 1 (b). ? House of Assembly Debates (Mansard), 16March 1971, cols. 2878-85 passim. 3/ See Debates, I March 1971, col. 2026;ibid., 27 April 1971, col. 5334; bid.,15 June 1971, col. 9250.SIbid., 15 June 1971, cols. 9251-2.P id., 17 February 1971, col. 1009.

-26 -ALIENS ACTNo. 1 of 1937, as amended(Not legally in effect in Nanibia)GeneralThis Act revulates the entry of aliens into South Africa and-provides forcancellation of their right of entry.It also restricts the right of a citizen or alien to change his name.Ent_ of aliens requires permitSection 2 prohibits aliens from entering South Africa -- whether for permanentresidence or for temporary sojourn -- without a permit. Sections 7his and 12

provide exeniptions from this requirement for distinguished visitors and a fewothers.I mi&rants Selection BoardSection 3 1/ establishes an Immigrants Selection Board to determine whichapplicants shall be admitted for permanent residence.Criteria for permanent residenceSection 4 (3) empowers the Board, entirely within its discretion, toissue or refuse to issue permits to applicants. But by a proviso it prohibits issuingpermits to anyone who does not meet the criteria set out in the subsection.Although race is not explicitly stated as a criterion, item 4 (3)(b) bars anyapplicant who is not likely to "become readily assimilable with the Europeaninhabitants". "European inhabitant" is defined in section I as a white person interms of section I of the Population Registration Act. 2/Cancellation of alien's termitSection 8 (2) empowers the Minister of the Interior to cancel a temporary entrypermit at any time and to serve notice on the affected alien that he must leavewithin the time specified in such notice. Subsection (1) emtpovers the Minister tocancel a permit for permanent residence and order an alien to leavethe country if his residence permit was based on false information or if he changeshis occupation within three years of his arrival without official permission.Refusal to comply with an order to leave is a criminal offense.1/ Substituted by Act No. 12 of 1971, sec. 1._/ Act No. 30 of 1950.

Aliens Act- 2Thre of nameSection 9 prohibits any person, under criminal penalty, from changing his namewithout the consent of the State President, published in tl)e Government Gazette.Exemptions from this requirement are made for a women.vho assumes her4husband's surname on marriage and certain other specified cases. flication of ActSection l3bis makes the Act and amendments applicable to the Territory,including the Eastern Caprivi Zipfel.Technical supplementGeneralThis Act must be read with the Admission of Persons to the Republic ReEulationActNo. 59 of 1972.Criteria for permanent residenceDespite the wording of section 4(3), it is clear from extraneous information thatthe purpose of granting the Board broad discretion is to prevent any judicialinquiry into its actions -- and that the actions into which judicial inquiry would belikely to be directed would be refusals of permits.The proviso in effect restricts the discretion of the Board insofar aseranting -- but not refusing -- permits is concerned. It is worded to provide that analien is not admissible unless he or she:(a) has a good character;

(b) is assimilable and likely to become a "desirable inhabitant";(c) "is not likely to be harmful to the welfare of the Union"; and(d)" is not in an overcrowded occupation; or(e) is the wife, minor child, or aged parent or grpand-parent of a perranentlawful resident of South Africa who is able and undevtakes to naintainhim or her.APPlication of the ActThe definition of "Union" in section 1 includes "the territory of South-West frica".However, this definition was substituted by amendment-in 1967, and therefore theAct is not validly in effect in Namibia. "There is no other reference to the Territory in the Act.

- 28 -B.11TU AFFAIRS ACTNo. 55 of 1959, as amended(Never legally in effect in 1amibia)This Act is one of a growing number which provide for the Viery complex, =Ulti-layered structure of "Bantu administration" in South Africa.Sections 2-4 of the Act and the regulations issued under section 15 (1)(a) were purportedly made applicable to Namibia by an amendment passed afterthe revocation of the mandate. L/Sections 2-4 provide for the establishment by the State President of a BantuAffairs Commission composed of 3-6 members. The Commission is to underta-kea continuing review of the administration of African affairs and of leeislation onthe subject and to make recommendations thereon to the Minister of BantuAdministration and Development. It may appeal to the State President andultimately to Parliament if its recommendations are turned down.Regulations under section 15 (1) (a) 2/ concern the operation of the Commission.Technical supplementComposition of Bantu Affairs CommissionSection 2(2) of the Act, as originally worded, provided that the territorialAdministrator was a member of the Comission. However, Act No. 49 of 1970,section 4, substituted a new subsection (2), which simp3y specified the number ofmembers. It is assumed, however, that the State President will continue tonominate a representative of the Territory, if not the Administrator (the changedid not, of course, prohibit renomination of the Administrator).Administrative function of the CormissionSection 3 (3) provides that the Minister of Bantu Administration and Development nay delegate any of his powers or functions to a member of theCor&mission. Such a delegation would-appear to jeopardize the Commission'sability to review departmental activity.Comcmission procedureSection 4(2) provides that in case of a split of opinion in the Commission VWhichis decieed by the Chairman's casting vote, a dissenting nember may take thedispute to Parliament. In view of the close party control over all appointlents tothe Co~mmission -- under the South African Constitution (Act No. 32 of 1961,

sec. 16 (1), (2)) the State President acts on the advice of th;Executive Council(i.e., the Cabinet) in nominating members of the Commission -- his provision forappeal from such a split vote seems anomalous.I/ Sec. 16A, added by Act No. 49 of 1970, sec. 6. 2/ Paragraph substituted by ActNo. 49 of 1970, sec. 5.

- 29 -BANTU EDUCATION ACTNo. 47 of 1953, as amended(Never legally in effect in Namibia).General.* This Act, only recently applied to the Territory, was enacted to give Pretoriacotrol over primary and secondary education for Africans, which had previouslybj4n carried on by the provincial (and territorial) governments and bymissionaries with some subsidies from the national government.Transfer of controlSection 2 provides for the transfer of control over African education from theprovinces (and, by extension, from the Territory) to the Minister of BantuAdministration and Development. I/ Subsequent sections provide for the transferof administration, personnel, assets and liabilities, etc. R/.Types of schools for AfricansThe Act recognizes three different types of schools for African children:- "Banta community schools", i.e., schools established or maintained by aBantu authority, council, tribe, or community;- "Government Bantu schools", i.e., schools established by the centralgovernment, including schools previously established and maintained by theprovincial (and territorial) Administrations; and- "State-aided Bantu schools", i.e., private (mission) schools, which maybe entitled to grants under the Act. 3/Government policy favours the first two types over the third. /Africanparticipation in community schoolsIn accordance with the principle that there should be "active participationby the Bantu people" in the management of schools for African children, section12 5-1 empovers the Minister to set up councils, boards, or other bodies tomanage Bantu community schools. It also provides for the creation of schoolcommittees to assist them.I/ Originally the Minister of Native Affairs, sometimes the Minister of BantuEducation.2r Sees.. 3-5, 11, 13, 14.3 Secs 6, 7 (1), (2), and 8 respectively.See section 8 (1), proviso (conditions for approval of state -aided schools),discussed under "financial assistance" below.5/ Substituted by Act No. 44 of 1970, see. 3. For an early expression of theprinciple, set out in section 12 (1), see House of Assembly Debates (Hansard),17 September 1953, col. 3851 (Minister of Native Affairs).

Bantu Education Act- 30Prohibition of unregistered schoolsSection 9 (1) and (5) makes it unlawful 6/ to conduct n unregistered"Bantu school or native school" or to admit an African of any age to anunregistered school. A person contravenes this prohibition if ie teaches or tutorsmore than one African at the same tine. 7/Control througrecistrationEvery school for Africans must comply with regulations prescribed by theMinister in order to be registered; but the registration of even a complying schoolis discretionary and may be for a limited period only. The M.inister may imposeconditions for registration and may repeal or vary such conditions or add others atany time; and he nay cancel a registration for breach of any such conditions. /The Ifinister is required to refuse to register a school or to cancel a registration ifhe is satisfied that the schoolis not or will not be in the interests of the Bantu people or any section of suchpeople or that such a school is or is likely to be detrimental to the physical, mentalor moral welfare of the pupilsor students who attend or may attend that school. 2/Control through financial assistanceSection 6 enpowars the Hinister to subsidize, subject to conditionsestablished by him, any Bantu community school, including any hostel, clinic, orother facility which is ancillary to such a school. He may suspend, reduce, orwithdraw any subsidy or assistance in his discretion.Section 8 empowers the .inister to make grants-in-aid to approvedprivate or mission schools, subject to such conditions as he may stipulate. (Beforeapproving any such school the Minister "may" consider whether it is likely topreclude, retard, or render impracticable the establishment of a Bantu corimunityor Government Bantu school in the area.)10/ Subsection 8 (2) authorizes theMinister to suspend, reduce, or withdraw such grants "in his discretion".Control of teaching staffSection 10 (2) (S) gives the Minister plenary power over the appointment,promotion, transfer, and discharge of teachers in Government Bantu, schools, andother subsections give him equal power as to their conditions of employsent andretirement pensions. _1/§/ Except in a "homeland" in vhich a legislative councilbhas been established.See. 9 (4B), added by Act No. 44 of 1970, sec. 3./ See sec. 1, definition of "'native school' or 'bantu school"'. 8/ Sec. 9 (1) (b),(3), (4).V Sec. 9 (2).10/ Sec. 8 (1), proviso.PL Sec. 10 -(.

Bantu Education Act- 31

Section l0bis(1) (a) vests power as to appointments, promotion, transfer, anddischarge, as well as to non-statutory conditions of employment, in the person orbody in charge of a state-aided school.Section 10bis (1) 12/ vests such powers as to a Bantu co~nunity school in theCouncil, board, or other body to which management of the gchool has beenentrusted in terms of section 12 of the Act.However, it appears that, through registration and financial grants, the Ministercan compel the person(s) in charge of state-aided schools and the managingbodies at comunity schools to do as the Minister wishes as to personnel. 1RegulationsSection 15 (1) l/ empowers the Minister to issue regulations as to everymatter covered by the Act, and subsection (3) makes contravention of a regulationan offense.Subsection 15 (2) provides that the Minister may issue different regulationsas to "different teachers, groups, classes or races of teachers, or different schoolsor areas".AUlication to the TerritorZSection 15tjer (1) L5/ makes the Act and all amendments applicable to theTerritory, including the Eastern Caprivi Zipfel. However, the next sub-sectionexcludes the Nama from the operation of the Act by providing that they are notdeemed to be "natives" or "Bantu". The provisions of section 9 do not apply to"homelands" in which a legislative council has been established.Section 15ter (3) repeals the Education Ordinance of 1962 as to Africans, L/ butsub-sectionT-) provides that the regulations issued under that ordinance shallcontinue in effect as regulations under the Act, applicable to the Territory only,except when they conflict with the Act.12/ Substituted by Act No. 44 of 1970, sec. 2. 13/ See Landis, "South AfricanApartheid Legislation, Part II, 71 Yale LawJournal 437, 494 (1962).11_/ Para. (SL), substituted by Act No. 44 of 1970, sec. 4 (1). 115/ Section 15ter,added by Act No. 44 of 1970, sec. 5. .16/ Ord. No. 21 of 1962.

- 32 -Bantu Education ActTechnical supplementGeneralThe 1970 Act which made this Act applicable to Vamibia did not indicate exactlyhow it should be applied. It must be assumed, however, that the intention is thatthe Territory shall be assimilated to a province for purposes of the Act.It should be noted that under the 1925 South-West Africa Constitutionbefore its repeal and under the present South-West Africa Constitution Act I/"native affairs", including the education of African children, falls under thejurisdiction of Pretoria.Transfer of controlAs of the effective date of this Act, the term "Bantu" was not employed. Mattersrelating to Africans were handled by the Minister of Native Affairs. Subsequently,

"Iative Affairs" was replaced by "Bantu Administration and Development", andsonewhat later the Department of Bantu Administration and Develolmient wassubdivided, with African education being placed under a Department of BantuEducation. The Departments were subsequently recombined.Section lh, not referred to in the text of the digest, provides for expropriation ofland for "Bantu education".African particiationBefore this Act was passed, government spokesmen in Parliament made almost afetish of participation by African parents in the management of schools for theirchildren. However, an analysis of the comments on the subject seem to indicatethat the two primary objectives of such participation were: (i) greater financialcontributions by the African community to the costs of education and(ii) the undermining of mission schools (in which religious orders or authoritiesfrequently retained quite extensive authority).However, since the establishment of Bantu schools and the virtual abolition ofprivate schools in South Africa, the authorities appear to be somewhat lessenamoured of parental participation. As originally enacted, section 12 providedfor the creation of councils, boards, committees, etc., in both Government Bantuschools and Bantu community schools. The new section 12 substituted by Act No.44 of 1970, section 3, abolished the reference to Government Bantu schools, thuslimiting parental participation to Bantu community schools only.Section 12 (1) provides for the creation of regional councils, boards or otherbodies to manage schools in more than one area, as well as for local bodies tomanaze single schools. And section 12 (2) provides that the school committeesmay also be regional when the manaFement body is regional.1/ 1Ro. 39 of 1968, sec. 22 (1) (a), substituted by Act No. 25 of 1969, sec. 14 (a)

Bantu Education Act, T.S.- 33Although not spelled out in the statute, it appears that school co'Mnittees areintended to have advisory and ancillary, rather than operational, function'.Prohibition of unregistered schoolsThe exemption of certain territorial "homelands" (under section 9 (4B)) from theregistration requirements of section 9 becomes effective only on a date fixed bythe Ilinister by notice published in the Gazette. Different dates may beestablished in respect of different areas. 2/Section 9 (4B) also applies in the Republic to areas as to which a Bantu territorialauthority has been established under the Bantu Authorities Act of 1951.Tne full effect of the ban on unregistered schools for Africans can only beunderstood when read with the definition in section 1 of "'native school' or 'Bantuschool'". The definition includes "any school, class, college or institution for theeducation of Bantu children or persons, or for the instruction and training ofBantu persons who desire to become teachers or to improve their qualifications asteachers ..." (&nphasis added.). This has been construed to include anyinstruction, even by private tutorial, or more than one person at a time, whetheradult or child. In parliamentary debate it was

said that women had been arrested for contravention of section 9 for lecturing to agroup of children in the fields if a blackboard was available as evidence althou&hthere were no textbooks and only a few slates. 3/The penalty for operating an unregistered school is a fine of P100, or indefault thereof, imprisonment of up to six months. (Sec. 9 (5)).Control through financial assistanceAs of this date, the impact of this Act on territorial schools must be interpolatedfrom South African experience. In the Republic grants-in-aid to African schoolsare paid in respect of each post and each incumbent of each post. Theconsequence is that the giving or withholding of necessary funds depends uponthe conduct and attitudes of individual teachers. While the regulations governingdisciplinary proceedings require notice and hearing to the affected teacher orother school erployee, the refusal of a subsidy is entirely discretionary with the!1inister or his deputy; even the school affected has no right to intervene. Thegovernment nay refuse to pay any subsidy until a particular individual isdismissed. 4/As indicated above under "types of schools", the government favoursGovernment Bantu schools and Bantu community schools over private schools.Indeed, lational Party members made no secret of their desire to rid the country ofmission schools, particularly those run by the Roman Catholic and AnglicanChurches. 5/ To achieve this goal, they used a combinationmof financial pressureand registration requirements: First they progressively reduced subsidies2/ Sec. 9 (4C), added by Act To. 44 of 1970, sec. 1.House of Assembly Debates (Hansard), 17 April 1956, col. 3790.Ibid., 17 April 1956, cols. 3751-3.D/ Ibid., 17 April 1956, cols. 3777, 3808; 24 April 1956, col. 4282.

Bantu Education Act, T.S.- 3hfrom 100% of salaries and allowances to teachers in 1954 to no subsidies at all in1958 while at the same time they prohibited the mission schools from chargingany fees. Teachers in such schools were also excluded from the state teachers'pension system. 6/ Schools which survived this financial squeeze were thereuponrequired to reregister, and they were approvid only if they were located in Africanareas or locations. [/Control of teaching staffThe use of subsidies to schools to control the conduct of individualteachers has been spelled out under the preceding rubric.In addition, the regulations governing the conduct of teachers are so rigid thatthere is a constantly growing number of teachers who have been forced out oftheir profession either for official misconduct or because they could not toleratethe oppressive conditions imposed on them. "Official misconduct" includescriticism of government racial policy.Aplication to the TerritoryThe exemption of the Nama from the definition of "natives" or "Bantu" followsthe pattern of other recent legislation (e.g., the South-West Africa Constitution

Act, no.. 39 of 1968, and the Identity Documents in South-West Africa Act, No.37 of 1970), by which they are assimilated to Coloureds. A rama in South-WestAfrica Education Act was Vnacted in 1972 (Act No. 86 of 1972).The provision of section 9 (1B), exempting certain "homelands" from theregistration requirement of section 9, reflects the South African claim that thesehoamelands are achieving "self-government".§_/ 'Ibd., 17 April 1956, col. 3898; 18 April 1956, col. 3807; 25 April195T, col. L 332; Maicquarrie, "The New Order in Bantu Education," AfricaSouth, October-December 1956, p. 37.I Debates, 17 April 1956, cols. 3777-3808.

- 35 -BASTERS OF REIOBOTH EDUCATIOi ACTNo. 85 of 1972(iXever legally in effect in Namibia).General.This Act places the Minister of Coloured, Rehoboth and Nama Relations incontrol of all education, up to university level, of Basters in the Gebiet. It coversboth state-run and state subsidized schools. Provision is nade for the completetake-over of subsidized schools by the government whenever the Minister sodecides, and private schools operating without subsidy are effectively abolished.The Act is in all significant respects identical to the legislation enactedat the same session of Parliament covering education of Naimas and Colouredpersons in Nanibia. I/ It supersedes the provisions of the Education Ordinance 2/insofar as they were applied to the Gebiet. 3/Control of education for Rehoboth BastersSection 2 provides that education for Rehoboth Basters shall be controlled by theDepartment of Coloured, Rehoboth and NIasa Relations. Subsequent sectionsspell out how this is to be accomplished in the two types of permitted schools:state schools, and state-aided schools.State schoolsSection 3 (1) empowers the Minister to establish schools of all kinds -primary,secondary, vocational, special, etc. -- for Basters in the Gebiet. He may alsoestablish ancillary facilities, such as hostels, teachers' quarters, clinics, etc. Newschools established under this authority, as well as schools already operated underthe Ordinance for Basters, are called "state schools" in the Act.State-aided schoolsSection 4 (1) empowers the Minister to award private schools for RehobothEasters grants-in-aid and loans for educational purposes or for student hostels.A school which receives such financial assistance or was receiving suchassistance from the territorial A&ministration when the Act became law is calleda "stateaided" school.Prohibition of other schoolsSection 6 (1) prohibits the existence of any school for Basters other than a stateschool or state-aided school unless the school is registered by the

I_/ ~.ema in South West Africa Education Act, No. 86 of 1972, .nd ColouredPersonsin South-WVest Africa Education Act, No. 63 of 1972, respectively.2-/ Ordinance No. 27 of 1962./ Rehoboth Gebiet (Further Extension of Laws) Proclanation, No. 77 of 1964,repealed by section 37 of the Act.

Basters Education Act- 36Department. This prohibition is enforced by penalties levied against the managerof an unregistered school. 4/ Take-over of state-aided schoolsSection 5 empowers the Minister, "after negotiation and'agreement with thegoverning body of a state-aided school," to transfer the manaCement and controlof such school to his Department. Assets and obligations of such schools alsopass to the State. /Control of opening and closing schoolsSection 8 empowers the Minister to determine whether a school, state or state-aided, shall be established. Section 3 (3) empowers him to close or disestablishany state school or facility used in connection with such a school.Control of courses, exainations, certifcatesSection 27 empowers the Minister to institute and abolish courses of instruction,to have examinations conducted, to grant diplomas, degrees, or certificates, and toset fees for such courses. Medium of instructionSection 36 (1) (e) empowers the Minister to determine which official languageshall be used in state and state-aided schools. Control of admissionSection 7, read with section 36 (1) (d), empowers the Minister to determine whoshall be admitted as students to both types of schools, the conditions foradmission, and who shall be discharged. Control of feesSection 31 (1) empowers the Minister to set school and boarding fees at both stateand state-aided schools. Subsection (2) empowers him to set different fees "inrespect of different classes of persons" or to exempt some persons or classes ofpersons in whole or in part. Control of financial assistanceSection 30 empowers the Minister to grant financial assistance to Basters at stateor state-aided schools or at a university. Control of school DersonnelSection 10 provides that the Minister shall control the appointment, promotion,transfer, and discharge of all personnel in both state and state-aided/ Section 6 (2).5/ Section 32.

Basters Education Act- 37schools. The Minister also controls the salaries and other conditions ofemployment of all school personnel. 6/Conditions of employnnentSections 15-25 deal with promotions, transfers, discharges, etc., as well asarrangements in case of change-over from state-aided to state schools.

The definition of misconduct in section 22, for which a teacher or other schoolemployee may be discharged, I/ includes, inter ala: publicly criticizing theadministration of the Department (except at a meeting of a recognized staffassociation); doing anything "likely to encourage feelings of hostility among thedifferent population groups of the territory"; and doing anything "prejudicial tothe administration, discipline or efficiency" of the Department, of any institutionof the State, or of a state-aided school. 8/FesulationsSection 36 (1) grants the Minister sweeping powers to make regulations under theAct. Contravention of a regulation may be punished by a fine of not more thanFO0 ($57.50) or by imprisonnent for not more than three months.j/Farticipation of parentsSection 34 empowers the Minister to establish school committees orboards to enable parents to participate in the management of both types ofschools.Compulsory school attendanceSection 29 (1) empowers the Minister to make school attendance compulsory forall Baster children in a specified part of the Gebiet if there are sufficientaccommodations for the children in either state or state-aided schools. Subsection(2) makes it an offense for any parent or guardian in such an area to fail to see toit that children under his care attend school.6/ Section 13.V See section 21 (1) (e).Paras. (e), (o), andCr), respectively. 9/ Section 36 5T.

- 38 -Basters of Rehoboth Education ActTechnical suuvlementGeneralThis Act is similar in many respects to the Coloured Persons. Education Act, No.47 of 1963, which in turn derives in substantial part from the Bantu EducationAct, r!o. 47 of 1953, analyzed above. It is substantially identical to the laws,discussed below, which were enacted in 1972 to govern the education ofColoureds and INamas in the Territory.The Act implements aparthei. theory by segregating the education of Basterchildren from that of other children of the Territory and by removing it from thedirection of educators and placing it under the control of segregationistideologues. Private schools for Basters are either effectively nationalized orabolished.With the enactment of the laws governing the education of Basters, Coloureds,and Na a in the Territory and the application of the Bantu Education Act to allother nonwhites, the Territory's 1962 Education Ordinance now applies to whitesonly.Definition of "Baster of Rehoboth"

Section 1 (i) defines a Baster of Rehoboth as a person who "in fact is or isgenerally accepted as a member of the Rehoboth Baster Community of theterritory .... tThis definition is far from satisfactory. The phrase "in fact is" isinterpreted in South African law to mean "is by descent.' Since there is noRehoboth Baster tribe or people to be descended from, the expression "in fact is"in the definition is meaningless.It is not clear why the Act did not define a Rehoboth Baster as any person sodefined under the Identity Documents in South West Africa Act.State schools and state-aided schoolsState schools for Rehoboth children are analogous to government Bantuschools in the Republic, and state-aided schools for Basters are similar tostateaided Bantu schools. (See above, Bantu Education Act.)South African policy favours government Bantu schools over state-aided Bantuschools. (See Digest, Bantu Education Act, "Control through financialassistance."). Section 5 of the Rehoboth Education Act, which provides for thefuture take-over of state-aided schools, expresses the sare policy for Rehobothschools. Heans of bringing such take-overs about, without exerting overt pressure,include manipulation of grants-in-aid, fee schedules, personnel

Basters Education Act, T.S.- 39standards, etc. end the use of school committees to agitate for chanda. (See below,appropriate headings).Grants-in-aid to state-aided schoolsRegulation 0 2 (see below, "Regulations") establishes m:nimum standards for amission or other private school that seeks a grant-in-id. These include, inter alia,an average attendance of at least ten pupils per term; official recognition of thechurch or mission responsible for maintenance of the school; proof of adequateaccommodation for students; nomrination of a school manager and recognition ofhim or her by the Secretary for Rehoboth Affairs; and compliance with decisionsof the Secretary as to enrolnent of pupils, curriculum, and standards of instruction.Grants-in-aid are withdrawn if these conditions are not met. /The full significance of Regulation 03 is obscure. It appears that, when read withsection 10 of the Act -- which empowers the M inister to control appointment,promotion, and discharge of all school personnel -- the regulation can make agrant-in-aid to a state-aided school dependent upon the appointment I ordischarge of a particular teacher. This is the situation in state-aided Bantu. schoolsin the Republic. (See above, Bantu Education Act, technical supplement, "Controlthrough financial assistance.")Prohibition of other schoolsThis prohibition parallels one in the Bantu Education Act 2/ but is less rigorous.By construction, the Bantu Education Act prohibits instruction of more than oneAfrican except in an authorized school. (See Digest, "Prohibition of unregisteredschools.") The Rehoboth Education Act prohibits instruction in an unregisteredschool of more than 14 Basters. 3/

Section 6 (1) in terms prohibits the existence of any private school for instructingmore than 14 Rehoboth Basters "unless such school is registered with theDepartment ... and complies with the prescribed requirements...." The expressedhostility of the Government to unregulated education for anyone, even whites,would seem to preclude actually granting registration to a wholly private schoolfor Basters -- even assuming that a mission or other group could afford to run onewithout any financial assistance from the eovernment.Control of coursesRegulation C 21 limits the books used for instruction or reference to thoseapproved by the Secretary for Rehoboth Affairs. Sub-regulation C 21 (c)empowers the Secretary to "declare any library book in the possession of a schoolor acquired by a school to be unsuitable or undesirable and such books shall behanded over to the Secretary."1/ Regulation 0 2 (i).2/ See section 9 (1) and (5).3/ Section 6 (1).

Basters Education Act, T.S.hoRelizious instructionThe only reference to religious instruction in the Act is found in passing in section36 (1) (e). However, the subject is covered in some detail in the regulations underChapter F.Regulation F 3 requires state schools to be opened with the Lord's Prayer oranother prayer and a reading from the Bible. Regulation F 5 requires at least 1 1/2hours of religious instruction per week (exclusive of devotions and Bible study) inall standards up to the sixth, and at least 70 minutes in the higher standards.Regulation F 6 prohibits any "specific doctrine or dogn.a which is distinctive ofany particular religious domination or sect ...."Regulation F 7 (a) provides that a child shall be exempted from religiousinstructions and devotions at his or her parent's request and shall not be penalizedtherefor. Regulation F 7 (b) provides that a teacher need not give or attend anyreligious instruction to which he or she has any.conscientious objectic if he or shehas obtained an exemption from the Secretary of the Department. In view of thestrong South African concern for "national Christian education", however, and thelimited opportunities for schooling, it is unlikely that many parents or teacherswould brave white disapproval to seek exemption.Regulation F 10 allows the manager or controlling body of a state-aided school todetermine the nature of religious education to be given; but the minimum anountof religious instruction required for state schools under Regulation F 5 must alsobe given in state-aided schools. The regulation also permits a child to beexempted on his or her parent's request.Any dispute between the authorities in either type of school and a parentconcerning religious instruction is to be decided by the Secretary of theDepartment, with no provision for appeal. h/Medium of instruction

Provisions relating to the medium of instruction for Rehoboth Bastersdeal with the choice between the two official languages only. Regulation F 1(1) provides that children shall be taught in the language in which they are moreproficient; a parent may choose between them only if the school principaldetermines that the children are equally proficient and if the inspector ofeducation approves.Since Afrikaans is the home language of most Basters, it would probably be themedium of instruction in most schools. Although Regulation F 1 (2)_provides for schools in which both languages are required as media ofinstruction, .)egulation F 1 (3) empowers the Secretary for Rehoboth Affairs, "inrespect of .any school, Eto_7 decide that only pupils whose medium of instructionis to ,e Afrikaans or only pupils whose medium of instruction is to be Englishshall be enrolled in such school ...."I/ Regulation F 11.

Basters Education Act T.S.- 41Regulation F 2 provides that both Afrikaans and English shall be taughtas a subject of instruction in all schools. It goes on to require that Elnglish, as asubject of instruction, shall as far as possible be taug)lt in English, and Afrikaansin Afrikaans.Control ot acmissionsRegulation C 2 provides that a Baster child of appropriate age and sexshall be admitted to a Rehoboth school if the necessary classroom accommodationis available and if he or she has attained the necessary degree of proficiency foradmission. A decision not to admit goes to the school committee or board ormanager, if any; if not, to the regional representative of the Department. A parentmay appeal an adverse decision to the Secretary, I/ but there is no provision forappeal to the courts.Reeulation C 24 permits, but circumscribes, the infliction of corporal punishmentin schools and hostels. Inflicting such punishment on a girl or in public isforbidden.Regulation C 25 (1) permits the suspension of a pupil when his or herconduct "is such that in the opinion of the principal it would be prejudicial to theinterests of the school to allow such pupil to continue attending school ...." Sub-regulations (3) and (4) provide that the results of an investigation into the matterby the school committee, board, or manager or by the Department's regionalrepresentative shall be sent to the Secretary for action thereon.Control of feesRegulation C 27 provides that no fees shall be charged for instruction through thetenth standard, except for special, part-time and continuation classes.If South African practice is followed, however, parents are likely to be put underpressure, perhaps through school co=nrittees, to "contribute" to such necessities asadding extra classrooms to the building, buying desks, or supplying slates andchalk. When the number of children that can be admitted to school is limited by

inadequate accommodations, school authorities may decide to require payment foradmission.Personnelconditions of employentRegulations B 1-73, by far the largest number of regulations relating to onesubject, cover "Appointment and conditions of service of teachers."Section 15 (1) (d) of the Act provides that women may qualify as teachers only ifunmarried although subsection (2) (b) empowers the Minister to make exceptions.7he regulations provide for exceptions, covering-such matters as "vacation leavefor accouchement" (Reg. 45); they suggest that there may be married womenteachers despite official discrimination against them.5/ Regulation C 4.

Basters Education Act, T.S.- 42Section 26 and Regulation B 68 (l)-(6) deal with staff associations, vhich may berecognized only if at least 50% of the staff joins. / No teacher may be compelledto join a staff association, :/ and no dues may b. collected or lncreased unless the!.Minister approves. §/ Staff association records are :ubject to official inspectionand verification. 9/,egulationsOn 21 December 1973 the Department of Coloured, Rehoboth and NamaRelations issued "Regulations franed under the Basters of Rholboth EducationAct, 1972". 7hese are found in Government Notice No. R. 2465 of 1973, printedinGoveniment Cazette !Ho. 4116.?articiiation of narentsRegulation D 1 (1) and (2) provides that a school committee of a stateschool shall consist of five or seven members elected by parents of the pupils at aspecial meeting. The school committee of a state-aided school shall consist of fivemembers, three elected by the parents and two (to be chairman and vicechairman)appointed by the church authority or mission board responsible for maintenanceof the school. 10/ The school principal acts as secretary for the committee; hemay take part in discussions but not vote. ii/Regulation D 9 lists the powers and functions of a school committee, inter alia: torecorxmend appointments to the staff; to inquire into complaints; to recommendinquiries by the Secretary in respect of staff; to advise on school welfare; tosubmit parents' representations to the regional representative of the Departm ent;to bring to the notice of the regional representative "any matter which in theopinion of the committee concerns the welfare or efficiency of its school"; and toexercise general supervision over the school.It is not unlikely that the government views school committees as a device todrain off much of the frustration and anger concerning Baster education whichmight otherwise be directed against the government. In relation to state-aidedschools, they may be used as a spearhead in a campaign to transform them intostate schools. Under Regulation D 12 (1) (b) the Minister retains power to

dissolve a committee that "has failed to carry out its duties satisfactorily or hasacted ... not in the best interests of the school ...Compulsory school attendanceGovernment Notice 129 of 1975 12/ introduced a unique form of compulsory'school attendance for Baster children in the Territory. Any child enrolled in-any school at the beginning of the school year is compelled to attend school,regularly for the remainder of the year.6 Section 26, Regulation B 68 (1), (2). 7/ Regulation B 68 (3).Regulation B 68 (4)2/ Regulation B 68 (5).O/ Regulation D 1 (3).11 / Regulation D 1 (4).12_/ Government Gazette No. 4562, 17 January 1975.

- 43 -BLIND PERSONS ACTNo. 26 of 1968, as amended(Never legally in effect in 1eribia)GeneralThis Act provides for the registration of blind persons and for the payment ofpensions to them.It contains minimal substantive provisions, leaving virtually all matters to bedetermined or elaborated on by regulation.Facial discriminationSection 17 (1) empowers the Minister to promulgate regulations as tonearly all matters touched on by the Act, and subsection (3) L/ permits differentregulations to be made as to different areas or different "classes or populationgroups". Section 18 (1) 2/ empowers the State President to assign administrationof the Act as to persons of one class or population group to one !inister and as toone or more other classes or population groups to one orInore other :inisters.Avilication to the Territor;Section 18A 3/ makes the Act and amendments applicable to the Territory,including the rastern Caprivi Zipfel. The 1971 Amendment Act h/ repeals theSouth 'est Africa Social Pensions Ordinance of 1965 insofar as it related to blindpersons and related matters.I/ Substituted by Act No. 16 of 1971, sec. 4 (b). 2/ Subostituted by Act No. 16of 1971, sec. 5. 3f Added by Act No. 16 of 1971, sec. 6. 4/ Sec. 7 (1).

- 14) -Blind Persons ActTechnical suovlementFacial discrimination: definitionsAs originally enacted, the statute contained defintions bf whites, Bantu, coloureds,Chinese and Indians. These definitions were removed by Act No. 16 of 1971, sec.1 (a), when the Act was made applicable to Namibia. Apparently this deletion was

made to demonstrate that the Act was nondiscrininatory, an effect that thegovernment wished to create since the question of :iamibia was then before theInternational Court. /Facial discrimination: different regulationsThe effect of sections 17 (1) and (3) and 18 (1) is to make possiblediscriminatory administration of the Act although the Act does not appear tosanction discrimination. Read together, these provisions enable the variousMinisters charged with administering the Act as to different "population" (i.e.,racial) groups to hide the fact that different regulations apply to the different racesby printing the regulations in different issues of the Gazette on different datesunder different departmental headings.flacial discrimination in -nracticeOpposition M.P.s have repeatedly claimed that social benefits, such asallowances for the blind, are normally paid to whites, Coloureds and Asians, andAfricans on a h:2:1 ratio 2/ although government spokesmen have denied this. 3]It is probable that pensions under the Blind Persons Act more or lessapproximatc this formula.I House of Assembly Debates (Hansard), 16 March 1971, cols. 2878-85 passim.? Ibid., 4 March 19(l, col. 2026; 27 April 1971, col. 5334; -a5 June 1971,col. 9250.31 Ibid., 15 June 1971, cols. 9251-2.

- 45 -"BOSS ACT" (GENIERAL LAW AEND CNT ACT)11o. 101 of 1969, section 29, as substituted by Act No. 102 of 1972, section 25(Never legally in effect in Namibia)This particular section of the General Law Amendment Act received itspopular name from the initials of the Bureau of State Security, whose activities, itwas widely believed, the law was designed to conceal.The two operative subsections of the law were replaced in 1972 by provisionswhich were intended to still criticisms of the original text by lawyers andacademics as well as Parli&.mentary opponents.Minister may prevent a witness from testifying in courtAs amended in 1972, the Act empowers a concerned Cabinet Minister to preventany witness in a court or before an administrative body from testifying or givinginformation about any fact, matter, thing or communication or from producingany thing, book, or document although the testimony or evidence would other-isebe compellable or permissible. The Minister can do this by presenting hisaffidavit to the court or agency that in his opinion disclosure of the fact, etc. willprejudicially affect the security of the.state. I/Application to NanibiaSubsection (3) provides that the section and amendments thereto apply in theTerritory, including the Eastern Caprivi Zipfol.1/ Subsection (1), as substituted.

- 46 -

"BOSS Act" (General Law Amendment Act of 1969, section 29).Technical supplementGeneralThis short law, which contains only two operative paragraphs (subsections(1) and (2)) perverts the entire judicial process by providing that a member of theexecutive shall determine whether matters alleged to affect state securitymay be disclosed in court rather than leaving that determination to the judge in thecase. Its full effect can be ascertained by reading it with section 10 of the sameenactment (General Law A.endment Act of 1969), which amends section3 (2) of the Official Secrets Act, No. 16 of 1956 (q.v.).In Parliamentary debates in 1969 IFational Party members argued that section 29merely codified existing law as to the exclusion of testimony affectingnational security. lowever, it appears that South African jurisprudence up to thattime held that the determination of whether, and what, evidence should beexcluded for national security reasons rested ultimately with the courts. l/Effect of 1.72 amendmentThe outcry against the law in its original form was so strong that in 1972 thegovernment substituted new subsections (1) and (2), which omitted the phrasewhich drew most of the criticism and also slightly modified other provisions.There was, however, no yielding on the basic provision that the executive, and notthe courts, should decide when testimony would endanger state security.Prior to the 1972 amendment section 29 empowered the Prime Minister, hisauthorized agent, or any Cabinet Minister to prevent a witness from testifying orproducing evidence in any court or before an administrative agency if suchofficial certified that he believed such testimony or evidence would be prejudicialto public security or to "the interests of the State." Although public security isitself a very broad term in South Africa, the phrase "interests of the State" was farbroader and nowhere defined. The 1972 amendment was apparently intended toend criticism of the whole section, if possible, by eliminating the offensivephrase. At the same time the amendment substituted "security of the State" for"public security" in the earlier version -- a somewhat anoralous c1'nge in view ofrepeated official declarations that the security of the state ic the highest good.Under the 1972 amendment it is no longer possible foran Cabinet Ministeror person authorized by the Prime Minister to bar evidence in a court. Asamiended,subsection (1) provides that in any particular instance the power to excludeevidence is vested in the Minister "responsible in respect of" the fact, thing,1_/ See House of Assembly Debates (Hansard), 11 June 1969, cdLs. 7807-11,7817-19;12 June 1969, cols. 7862-63; 17 June 1969, cols. 6223-24, citing, inter ala,sections 228 and 233 of the Criminal Procedure Act, No. 56 of 1955, andVan der Linde v. Calitz, 1967 (2) S.A. 239 (A.D.).

BOSS Act, T.S.- 47

etc., which it is allegedly dangerous to disclose. Whether more than one Ministermight be responsible "in respect of" a particular fact, etc., is not clear. Thus itappears that the Minister of Agriculture, for example, cannot under the amendedprovision bar testimony as to the treatment of persons in prison whereas theMinister of Prisons can; the question remiains whether, for example, the ForeignVinister can prevent such disclosure orithe grounds that he is responsible for factswhich would adversely affect foreign relations, or the Prime Minister on thegrounds that he is responsible for facts which affect national morale.The original subsection (1) required the Minister who intervened tosubmit a certificate to the effect that in his opinion the evidence in question wouldendanger public security or the interests of the State. As amended, the subsectionrequires the appropriate Minister to submit an affidavit. However, since theaffidavit ultimately attests only to his opinion concerning prejudice to statesecurity, the greater solemnity of the document will not necessarily cause agovernment Minister to exercise his power any more cautiously than under the1969 Act. On the other hand, the statements which must be set out in an affidavitunder amended subsection (1) are slightly more detailed than those required in acertificate in 1969. The Minister must now swear that: he has personallyconsidered the fact, thing, etc.; that in his opinion it affects the security of thestate; and that disclosure thereof will, in his opinion, prejudicially affect thesecurity of the state.Subsection (1) originally provided that the power to prevent disclosure ofevidence extended to disclosure not only in court but also before other bodies oragencies, presumably quasi-judicial administrative agencies. The 1972amendment slightly altered this language to include disclosure to commissions "ascontemplated by the Co'wnissions Act, 1947." It appears that this would include acommission such as that established to look into the affairs of NTUSAS, SASO,the Institute of Race Relations, and the Christian Institute. It is not clear underwhat circumstances administrative agencies would be likely to hear testimonywhich might affect state security.Operation of the ActThe only protection for citizens under the Act comes from changes introduced bythe 1972 amendment, viz.: removal of the provision permitting Ministers to barevidence prejudicial to "the interests of the State"; the provision that only the"responsible" Minister, not any Minister, may intervene; and the requirement thathe submit an affidavit containing the stated allegations, rather than a certificatewith somewhat less rigorous contents.Consequently, the possibilities envisaged in 1969 of interference with the judicialprocess have not been noticeably reduced. Thus it appears that a civil complainantmay still be barred from testifying as to-facts necessary to his case (for example,as to an assault upon him while detained by the police); a criminal defendant maybe barred from testifying in his oin defense (for example, as to comnunicationsmade to him by government officials); and either one may be prevented fromcompelling a third person to testify for him as to essential facts. 2/2/ See South African House of Assembly Debates, 11 June 1969, cols. 7800-03,7807-i1, 7814, 7817-19, 7824-25; 12 June 1969, cols. 7861-64; 17 June 1969,

cols. 0223-24.

Boss Act, T.S.DDlication to NamibiaThe power vested by amended subsection (1) in the "respopsible" 1-Minister inSouth Africa is vested in the Administrator of the Territo.y.- 48 -

- 49 -COLOURED DEVELOPMEN{T CORPORATION ACTNo. 4 of 1962, as amendedGeneralThis Act establishes a developnent corporation for the C61oureds of the Republic,to aid them in establishing and improving enterprises under their ownership orcontrol, to make capital available to them, and to provide them with technicalassistance in connection therewith.It is the prototype, in most respects, for the Rehoboth Investment andDevelopment Corporation, L/ with which it should be compared.The Act provides that the Corporation may exercise in the Territorysuch powers as are conferred upon it by ordinance; but, in somewhat obscurelanguage, it appears to limit the funds available to those derived from theTerritory. The Coloured Development Corporation Powers in the TerritoryOrdinance of 1966 2/ provides that the Corporation shall exercise in Namibiamost of the powers which it can exercise in the Republic.Nature of the CorporationThe Coloured Developtrent Corporation is a corporation of which the Republic isthe sole shareholder. It has an authorized capital of R500,000, on which it maypay a dividend of not more than five per cent .Objects of the CorporationSection 3 describes the objects of the Corporation asthe encouragement and promotion of the advancement of Coloured in Colouredand industrial areas, in the field of industry, trade andfinance ...The State President may determine other objects by proclamation in the Gazette.General powers of the CorporationThe Corporation is granted a broad, general power to "do anything that conducesto the attainment of its objects . V.. " _/ In general, the powers listed in section4 preceding that catch-all grant are related to (i) the generation of capital and/or(ii) the establishment and support of coloured enterprises, particularly of"coloured companies".1 Act No. 84 of 1969.Ordinance No. 28 of 1966 (q.v.).F Sections 2, 15, 18 (2).Section 4.

Coloured Development Corporation

- 50Power to carry on undertakingsThe Corporation may itself establish and carry on industrial, commercial, and/orfinancial enterprises. 5_/Pover to safeguard investmentsIn order to "safeguard" any investment made by it, the Corporation isempowered to take over, apparently by fiat, the direction of the business of anycoloured entrepreneur or of any coloured company. 6/Direction of the CorporationThe Corporation is run by a board of directors appointed by the StatePresident for such terms as he shall determine. The board is permitted to submitany matter to the Minister of Coloured, Rehoboth and Nana Relations for hisdecision (to be given after consultation vith the board), and his decision shall bedeemed the decision of the board. 7// Section 4 (a).Section 6.Sections 9, 12.

Coloured Development Corporation Act- 51Cross-reference tableSection(s)Sub.i ect-- ~ a.. -. zt! usse wudrDefinitions235-789-14.1516 17 18 19, 25, 262021 22 23 2426bisEstablishment of Corporation Objects of Corporation Powers of Corporation inGeneral Other powers Limitation of borrowing powers Directors Share capitalLiability of shareholderExpenditure Use of property of CorporationExemption from taxes and laws Accounts and audit Information to be furnishedRegulationsLiquidation of Corporation Use of name Powers of Corporation in TerritoryTechnical supplenent, "General powers of the Cornoration", ("Colouredcompenies", "industries") "Nature of Corporation""Objects of the Corporation" "General powers of the Corporetion"; "Power tocarry on undertakinss" "Power to safeguard investments"

"Direction of the Corporation" "Nature of the Corporation"*"echnical supplement, "Nature of the Corporation""Nature of the Corporation"Technical supplement, Corporation"Technical supplement,Corporation"?:yNture of the"Nature of the"General "Short titleSee also technical' supplement under same or related heading.

- 52Coloured DeveloD.tent CorDoration ActTechnical suplementN ature of the CornorationThe Corporation is a corporation in the American, or a limited liability companyin the British sense of the word:- it is registered in the South African resister of conpanies (section2 (3));- the shareholder is liable for only the amount unpaid on the shares itholds (section 16);- it may pay a dividend, although the amount is limited by statute (section18 (2)); and- it has perpetual succession, in that it can be wound up only by Actof Parliament (section 23).The Corporation also has so:me unique features, inter alia:- The Republic ("State") is the sole source of capital and sole shareholder(section 15);- it has the power to protect its investments by taking over business,apparently by fiat (section 6);- the State President is empowered, upon recornendation of the board ofdirectors, to increase the share capital of the Corporation "to suchextent as he may deem expedient" (section 15 (2));- the Corporation is exempt from income taxes (section 19);- except as the State President may otherwise provide, the Companies Act,Vo. 61 of 1973, does not apply to the Corporation (section 25); and- the Banking Act, Io. 38 of 1942, does not apply to the Corporation (secti,26).General powers of the CorporationThe catch-all grant of power quoted in the Digest, which follows variousenumrerated powers in section 4, would appear to grant the Corporation powerlimited only by other specific provisions of the Act itself and by other laws.Powers found in section 4 relating to the generation of capital include, inter alia:- providing capital;- lending money;

- guaranteeing or underwriting loans, shares, or debentures;- guaranteeing contracts and obligations and entering into bonds;- raising or borrowing money;- opening banking accounts; and acting as broker

Coloured hveve.opmenbW -1 .C X4.1 V~~U11 PC %,I i-J- 53Powers relating to the establishment and support of Coloured enterprises,in addition to some of the above, include, inter alia:- buying up businesses from persons other than Coloureds 4(subjcct toMinisterial approval);- establishing "coloured companies";- furnishinG technical assistance and expert advice and information; and- acting as aCent or representative for any Coloured.A "coloured company" is defined in section 1 (1) as any company all the shares ofwhich are held by Coloureds, with or without participation by the Corporation, orany association which has as members only Coloureds, orColoureds and the Corporation.Section 1 (2) defines "industries" to include mining and fishing and any otheractivity which the State President by proclamation declares to be an industry.Power to carr on undertakingsThe Corporation may itself carry on any business or industry only with theapproval of the State President. (Section 4 (a)).Power to safeguard investmentsIt would appear that section 6 empowers the Corporation to intervene inany Coloured company or any business of a Coloured in which it has anyfinancial interest without a court order. i.ormally an interested person would haveto seek an injunction, ask to be named trustee or conservator, or otherwise requestpreliminary relief from a judicial or administrative tribunal.Direction of the CorporationSections 9-14 spell out details of the direction of the Corporation.The Act very carefully avoids specifying that Coloureds either shall or shall notbe named directors or alternate directors. There is no provision for committees ofthe board, like that found in the Rehoboth Investment and DevelopmentCorporation Act, through which Coloureds could be named to positionsof some prominence but no power.

- 54 -COLOURED PERSOi'S III SOUTR-WEST AFRICA EDUCATION ACTNo. 63 of 1972(Never legally in effect in Namibia).GeneralThis Act placed the 14inister of Colured, Rehoboth and Plama Relations incontrol of all education, up to university level, of Coloured persons in theTerritory. It covers both state-run and state subsidized schools. Provision is madefor the complete take-over of subsidized schools by the governn.ent whenever the

Minister so decides, and private schools operating without subsidy are effectivelyabolished.The Act is in all significant respects identical to the legislation enactedat the same session of Parlimrient covering education of .p.mas and RehobothBasters in Namibia. V_ It supersedes the provisions of the Education Ordinanceg/ as to Coloureds.Control of Coloured educationSection 2 provides that education of Coloured children in the Territory shall becontrolled by the Department of Coloured, Rehoboth and Nama Relations.Subsequent sections spell out how this is to be accomplished in the two types ofpermitted schools: state schools and state-aided schools.State schoolsSection 3 (1) empowers the Minister to establish schools of all kinds -primary,secondary, vocational, special, etc. -- for Coloureds in the Territory. He may alsoestablish ancillary facilities, such as hostels, teachers' quarters, clinics, etc. Newschools established under this authority, as well as schools already operated bythe territorial administration, are called "state schools" in the Act.State-aided schoolsSection 4 (1) empowers the Minister to award private schools for Colouredsgrants-in-aid and loans for educational purposes or for student hostels. A schoolwhich receives such financikl assistance or was receiving such assistance from theterritorial Administration when the Act became law is called a "state-aidedschool."Prohibition of other schoolSection 6 (1) prohibits the existence of any school for Coloureds other than a stateschool or a state-aided school unless such school is registered by the3Department. This prohibition is enforced by penalties levied Against themanager of an unregistered school. 3_/i_/ lama in South West Africa Education Act, No. 86 of 1972, and Basters ofRehoboth Education Act, No. 85 of 1972, respectively.2 Ordinance No. 27 of 1962.,3/ Section 6 (2).

Coloured Education Act- 55Take-over of state-aided schoolsSection 5 enpo,.,ers the Minister, "after negotiation and agreement with thegoverning body of a state-aided school," to transfer the mapagement and controlof such school to his Department. Assets and obligatios of such schools 4Iso passto the State. 4/Pontrol of opening and closing schoolsSection 8 empowers the M.:inister to determine whether a school, state orstate-aided, shall be established. Section 3 (3) empowers him to close ordisestablish any state school or facility used in connection with such a school.Control of courses, exaninations and certificates

Section 27 empowers the Minister to institute and abolish courses of instruction,to have examinations conducted, to grant diplomas, degrees, or certificates, and toset fees for such courses.Ilediirn of instructionSection 36 (1) (e) empowers the Minister to determine which official lansuaceshall be used in state and state-aided schools. Control of admissionsSection 7, read with section 36 (1) (d), empowers the Minister to determine whoshall be admitted as students to both types of schools, the conditions foradmission, and who shall be discharged. Control of feesSection 31 (1) erpowers the Minister to set school and boarding fees at both stateand state-aided schools. Subsection (2) empowers him to set different fees "inrespect of different classes of persons" or to exempt some persons or classes ofpersons in whole or in part. Control of financial assistanceSection 30 empowers the Minister to grant financial assistance to Coloureds atstate or state-aided schools or at a university.Control of school personnelSection 10 provides that the Minister shall control the appointment, promotion,transfer, and discharge of all personnel in both state and state-aided tchools. TheMinister also controls the salaries and other conditions of employnent of allschool personnel. 5// Section 32.V/ Section 13.

Coloured Education Act- 56Conditions of employmentSections 15-25 deal with promotions, transfers, discharges, etc., including casesof change-over from state-aided to state schools.The definition of misconduct in section 22, for which a 1eacher or otherschool e:aployee may be discharged, 6/ includes, inter alia: publicly criticizing theadministration of the Department (except at a meeting of a recognized staffassociation); doing anything "likely to encourage feelings of hostility a-ong thedifferent population groups of the territory"; and doing anything "pre.udicial tothe a&2inistration, discipline or efficiency" of the Department, of any institutionof the State, or of a state-aided school. 7/RegulationsSection 36 (1) grants the Minister sweeping powers to make regulationsunder the Act. Contravention of a regulation may be punished by'a fine of notmore than R50 ($57.50) or by imprisonment for not more than three months. 8/Participation of parentsSection 34 empowers the I1inister to establish school boards or committees toenable parents to participate in the management of both types of schools.Comnulsorr school attendanceSection 29 (1) empowers the Minister to make school attendance compulsory forall Coloured children in a specified area. Subsection (2) makes it an offence for

any parent or guardian in such an area to fail to assure that children under his orher care attend school.61 See section 21 (1) (e).1/ Paragraphs (.), (a), and (r), respectively.8/ Section 36 (5).

- 57 -Coloured EducationTechnical supplementGeneralThis Act is similar in many respects to the Coloured Persons Education Act, No.47 of 1963, which in turn derives in substantial part from the Bantu EducationAct, No. 47 of 1953, which is analyzed in this DiGest.It implements apartheid theory by segregating the education of Coloured childrenfrom that of other children of the Territory and by removing it from the directionof educators and placing it under the control of segreeationist ideologues. Privateschools for Coloureds, which were established by various missions withgovernment support, are effectively nationalized; they remain private only insofaras mission personnel maintain some traditions, personnel, and a certain attitudedistinct from that of government administrators.With the enactment of the laws governing the education of Namas, Coloureds,and Basters in the Territory and the application of the Bantu Education Act to allother nonwhites, the Territory's 1962 Education Ordinance now applies to whitesonly.Definition of ColouredSection 1 (iv) defines a Coloured person as a person who "in fact is or is generallyaccepted as a member of the Coloured population group of the territory .......This definition is far from satisfactory. The phrase "in fact is" is interpreted inSouth African law to mean "is by descent." Since there is no Coloured tribe orpeople to be descended from, the expression "in fact is" in the definition has noneaning.The only other reference to the "Coloured group" in 1amibian law is found in theregulations issued in terms of the Identity Documents in South-West Africa Act,1970, found in Government Notice No. R. 749 of 1972, Government Gazette No.3486, 5 May 1972. Regulation 7 (c) refers to the population groups to whichpersons subject to the Act belong, including (ii) "Coloured person of SouthWestAfrica." There is no definition of that group in the Act or the regulations. (SeeDigest, Identity Documents in South-West Africa Act, technical supplenent,"Racial or population classification".)State schools and state-aided schoolsState schools for Coloured children are analogous to government Bantu schools inthe Republic, and state-aided schools for Coloureds in Naxibia are similar tostate-aided Bantu schools. (See Digest, Bantu Education Aict.) There areequivalent distinctions in the Coloured Persons Education Acf.

South African policy favours government Bantu schools over state-aided Bantuschools. (See Digest, Bantu Education Act, "Control through financialassistance".) Section 5 of the Coloured Education Act (SI.A), which makes

Coloured Education, T.S.- 58provision for the future ta:e-over of state-aided schools, expresses the sane. policyfor Coloured schools in the Territory. 1eans of bringing this about, withoutexerting overt pressure, including control of grants-in-aid, of fees, of personnel,etc., and the use of school cor.mittees to ask fir full state control. (See below,appropriate headings.)Grants-in-aid to statc-aided schoolsRegulation 0 2 (see below, "Fegulations") establishes minimum standardsfor a mission or other private school that seeks a grant-in-aid. These include, interalia: an average attendance of at least ten pupils per term; official recognition ofthe church or mission responsible for maintenance of adequate accommodationfor the students; nomination of a school manager and recognition of him or her bythe Secretary for Colo'ired Affairs; and compliance with decisions of theSecretary as to enrolment of pupils, curriculum, and standards of instruction.Grants-in-aid are withdrawn if these conditions are not met. /The full significance of Regulation 0 3 is not clear. However, it appears that, ahenread with section 10 of the Act, which empowers the 14inister to controlappointment, promotion, and discharge of all school personnel, the regulation canmake a grant-in-aid to a state-aided school dependent upon the appointment ordismissal of a particular teacher. This is the situation in state-aided Bantu schoolsin the Republic. (See Digest, Bantu Education Act, technical supplement,"Control through financial assistance".)Prohibition of other schoolsThis prohibition parallels one in the Bantu Education Act 2/ but isless rigorous. By construction, the Bantu Education Act prohibits instructio: ofmore than one African except in an authorized school. (See Digest, "Prohibitionof unregistered schools".) The Coloured Education Act (SWA) prohibitsinstruction in an unregistered school of more than 14 Coloured persons. 3/Section 6 (1) prohibits the existence of any private school for instructing morethan 14 Coloureds "unless such school is registered with the Department ... andcomplies with the prescribed requirements ...." The expressed hostility of thegovernment to unregulated education for anyone, white or non-white, would seemto preclude actually granting registration to a wholly private school for Coloureds-- assuming that a mission or other group could afford to run one without anyfinancial assistance from the government.Control of coursesRegulation C 21 limits the books used for instruction or reference tothose approved by the Secretary for Coloured Affairs. Sub-regulation C 21 (c)empowers the Secretary to "declare any library book in the possession of a schoolor acquired by a school to be unsuitable or undesirabli and such books shall behanded over to the Secretary."

1/ Regulation 02 (i).?_ See section 9 (1), (5).3/ Section 6 (1).

Coloured Education, T.S.- 59~igous instructionThere is only an indirect reference to religious instruction in section 36(i) (e) of the Act. However, it is covered in some details bn Chapter F of theregulations.Regulation F 3 requires state schools to be opened with the Lord's Prayer oranother prayer and a reading from the Bible. Regulation F 5 requires at least 1 1/2hours of religious instruction per week (exclusive of devotions and Bible study) inall standards through six and at least 70 minutes in the higher standards.Regulation F 6 prohibits any "specific doctrine or dogma which is distinctive ofany particular religious denomination or sect ....Regulation F 7 (a) provides that a child shall be exempted from religiousinstruction and devotions at his parents' request and shall not be penalizedtherefor. Regulation F 7 (b) provides that a teacher need not give or attend anyreligious instruction to which he has any conscientious objection if he hasobtained an exemption from the Secretary of the Department.Regulation F 10 allows the manager or controlling body of a state-aided school todetermine the nature of religious instruction to be given; but the minimum amountof religious instruction required for state schools under Regulation F 5 must alsobe given in state-aided schools. The regulation also permits a child to beexempted at his parents' request.Any dispute between the authorities in either type of school and a parentconcerning religious instruction is to be decided by the Secretary of theDepartment, without appeal. 4/Medium of instructionProvisions relating to the medium of instruction for Coloureds deal with thechoice between the two official languages only. The basic regulation, F 1(1), provides that children shall be taught in the language in which they are moreproficient; a parent may choose only if the school principal determines that thechildren are equally proficient and if the inspector of education approves.Under this provision it appears likely that most Coloured children will be taughtin Afrikaans: the white settlers, who are overwhelmingly Afrikaans(or German-)speaking, will tend to set language patterns in-many places. Most Coloured areAfrikaans-speaking, although numbers would choose to learn English instead.Departmental officials who determine, or oversee the determination of proficiencyare nearly all Afrikaners, and many of them look upon English as the language ofsubversion. Although Regulation F 1 (2) provides for schools in which bothlanguages are required as media of instruction,-regulation F1 3) empowers theSecretary for Coloured Affairs, "in respect of any school, / to_/ decide that onlypupils whose medium of instruction is to be Afrikaans or only Pupilswhosemedium of instruction is to be English shall be enrolled in such school ...."

Regulation F 2 provides that both Afrikaans and English shall be taught as asubject of instruction in all schools. It goes on to require that English,F/ Regulation F 11.

Coloured Education, T.S.- 60as a subject of instruction, shall as far as possible be taught in English, andAfrikaans in Afrikaans.Control of admissionsRegulation C 2 provides that a Coloured child of the appropriate age and sex shallbe admitted to a Coloured school if the necessary classroom accommodation isavailable and if he has attained the necessary degree of proficiency for admission.A decision not to admit goes to the school committee, board or manarer, if any; ifnot, to the regional representative of the Department. A parent may appeal anadverse decision to the Secretary 5/ if he has the necessary knowledge, money anddetermination; but there is no appeal from the Secretary's ruling.Regulation C 24 permits, but circumscribes, the infliction of corporal punishmentin schools and hostels. Inflicting such punishment on a girl or in public isforbidden.Regulation C 25 (1) permits the suspension of a pupil when his conduct "is suchthat in the opinion of the principal it would be prejudicial to the interests of theschool to allow such pupil to continue attending school ...." Sub-regulations (3)and (4) provide that the results of an investigation into the matter by the schoolcommittee, board, or manager or by the regional representative of the Departmentshall be sent to the Secretary for action thereon.Control of feesRegulation C 27 provides that no fees shall be charged for instruction throub the10th standard, except for special, part-time and continuation classes.If South African practice is followed, however, parents are likely to be put underpressure, perhaps through school committees, to "contribute" to such necessitiesas adding extra rooms for the school, buying desks, or supplying slates and chalk.When the number of children that can be admitted to school is limited byinadequate accommodations, school authorities may be strongly temptedtodemand payment for admission.Personnel and conditions of employmentRegulations B 1-73, by far the largest number of regulations relating to onesubject, cover "Appointment and conditions of service of teachers."Section 15 (1) (d) of the Act provides that women may qualify as teachers vnly ifunmarried, although subsection (2) (b) empowers the Minister to makeexceptions. The regulatins provide for the exceptions, including such matters as"vacation leave for accouchement"y/; they suggest tbiat there nay be I fair numberof married women teachers despite official discr'imnation against them./ Regulation C 4.i/1 Regulation 45.

Coloured Education, T.S.

- 61Section 26 and Regulation B 68 (1) - (6) deal with staff associations, which maybe recognized only if at least 50% of the staff joins. 7/ io teacher may becompelled to join a staff association 8/ and no dues may be collected or increasedunless the Minister approves. 9/ Staff association records are subject to officialinspection and verification. 10/RegulationsOn 21 Decenber 1973 the Department of Coloured,. Rehoboth and NamaRelations issued "Regulations Framed under the Coloured Persons in South-WestAfrica Education Act, 1972". These are found in Government lotice No. R. 2464of 1973, printed in Government Gazette No. 4115. Participation of parentsRegulation D 1 (1) and (2) provides that a school committee of a stateschool shall consist of five or seven members elected by parents of the pupilsat a special meeting. Sub-regulation (3) provides that a school co--mittee of astate-aided school shall consist of three members elected by parents of the pupilsand two members appointed by the mission board or other body responsible forthe school, such persons to be chairman and vice-chairman.The school principal acts as the secretary of the committee, who may speak butnot vote. Il/Regulation D 9 lists the powers and functions of a school committee,inter alia: to recommend appointments to the staff; to require into complaints; torecommend enquiries by the Secretary in respect of staff; to advise on schoolwelfare; to submit parents' representations to the regional representative of theDepartment; to bring to the notice of the regional representative "any matterwhich in the opinion of the committee concerns the welfare or efficiency of itsschool"; and to exercise general supervision over the school.It is not unlikely that the government views school committees as adevice for draining off much of the frustration and anger concerning Colourededucation which might otherwise be directed against the Department. In relationto state-aided schools, they may be used as a spearhead for a cm-paign totransform them into state schools. Under Regulation D 12 (1) (b) the M¢inisterretains power to dissolve a committee that "has failed to carry out its dutiessatisfactorily or has acted ... not in the best interests of the school.Comulsory school attendanceThe government has initiated a new form of "compulsory school attendance". BYgovernment notice No. 2 of 1975 12/ any Coloured child enrolled in a school inthe Territory at the beginning of a school year shall be compelled to attend untilthe end of the year.V Section 26, Regulation B 68 (1), (2).Regulation B 68 (3).21 Reeula.tion B 68 (4).10/ Regulation B 68 (5).11/ Regulation D 1 (4).2 Government Gazette No. 4554, 3 January 1975.

- 62 -

CO:.A.UIES ACTzio. 61 of 1973(Wever legally in effect in Namibia)GeneralThis Act replaces the previous'Companies Act of 1926. 1/It covers a broad variety of organizations: limited companies with share capital;companies limited by guarantee; unlimited companies; private companies;associations not for eain; and external companies. ?/ This Act, like the previousone, prohibits "large" associations, syndicates, or partnerships by requiring themto register as companies. 3/ Subjects coveredThe Act covers the following matters:interpretation and definitionsapplication of the Act (Chapter I)administration of the Act (Chapter II)types and forms of companies, conversions and limitation or. partnershipsand associations (Chapter III)formation, objects, capacity, powers, names, registration and incorporationof companies, matters incidental thereto and deregistration (Chapter IV)share capital, reduction of capital, shares, allotment and issue ofshares, members and register of members, debentures, transfer andrestrictions on offering shares for sale (Chapter V)offering of shares and prospectus (Chapter VI)administration of companies (Chapter VII)directors (Chapter VIII)remedies of members (Chapter IX)auditors (Chapter X)accounting and disclosure (Chapter XI)compromise, amalgamation, arrangement and take-overs (Chapter XII)external companies (Chapter XIII)winding-up of companies (Chapter (XIV)__/ io. 46 of 1926.S *ections 1, 4, 19-21; ch. XIII. 2/ Section 30.

Companies Act- 63judicial management (Chapter XV)penalties for offences (Chapter XVI)repeal of laws and cor.encenent of the Act (Chapter XVIIJ.Connanies doing business in the TerritoryUntil 1969 companies doing business in the Territory were registered as SouthWest African companies under the Companies Ordinance of 1928. L/In line with the riajor lerislative, administrative, and financial "rearrangements"made by the South lest Africa Affairs Act of 1969, 5/ the 1926 Coi:panies Act,then in effect, was amended in 1969 so asito bring about the following changesaffecting Peumibia:(i) The Act was purportedly applied to the Territory. 6/

(ii) Companies registered under the Companies Ordinance of 1928 weredeemed registered under the South African Companies Act. 7/(iii) Foreign companies operating in Namibia and subject to the 1928 Ordinancewere made subject to the South African Companies Act instead. 8/(iv) The territorial resister of companies kept under the provisionsof the Ordinance was merged into the South African reeister kept inaccordance with South African law. 2/(v) The Companies Ordinance was repealed. 10/These changes are not spelled out in the 1973 Act since they were completelycarried out by the 1969 anendments to the old law and are now accomplishedfacts.Aoolication to the TerritorySection 2 (1) makes the 1973 Companies Act applicable in the Territory,including the Eastern Caprivi Zipfel. Section I defines "Republic" as including theTerritory.4/ Ordinance No. 19 of 1928.Act No. 25 of 1969, q-v./ Sections 228A (added by Act No. 90 of 1969, section 9) az 229 (added by ActNo. 90 of 1969, section 10).~I Section 2 (Ibis) (added by Act No. 90 of 1969, section I (a)).Section 2 (4te-r) (added by Act No. 90 of 1969, section 1 ()). 2/ Section 3 (W31)(added by Act No. 90 of 1969, section 3).10/ Act Ho. 90 of 1969, schedule.

Comoanies ActTechnical suoplementGeneralWithin the general categories of companies covered by the Act thereare subcategories, including: controlled company, controlling company, holdingcompany, subsidiary company, and wholly owned subsidiary. 1/"Large" associations are defined by section 30 (1) as consisting of more than 20persons. Section 30 (2) exempts partnerships of persons in the professions (law,architecture, medicine, etc.).Effect of 19D amendments to 1926 ActSection 2A of the 1926 Companies Act 2/ provided that companies registeredunder pre-mandate German law 3/ are also deemed registered under the SouthAfrican law.Section 3 (4) (b) of the 1926 Companies Act 4/ provided that the powersand functions of territorial officials relating to the registration of companies andadministration of the Companies Ordinance were vested in the South AfricanRegistrar of Companies.It should be noted that the main effect of the changes made in the South AfricanCompanies Act in 1969 was to transfer control of foreign investors operating inNamibia from the territorial Administration to Pretoria, Control of localcompanies was, of course, also transferred.__/ Section 1.

j_/ Added by Act No. 90 of 1969, section 2. 3_/ Gesetz, betreffendGesellschaften. mit Beschraenkter Haftung, of 20 April1 92, as amended by the Einfuehruntesetz zandelsgesetzbucher of 10May 1897, published by the Imperial Chancellor on 20 May-1898. !_/ Added byAct No. 90 of 1969, section 3.- 64 -

- 65 -CUSTOMS AND EXCISE ACT1o. 91 of 1964, as amendedGeneralThis Act, which replaced earlier customs laws, regulates :and taxes the.importation of goods into South Africa and the Territory.The provisions are, by and large, technical, and cover subjects included in similarlegislation of other countries. This digest di'scusses only a few provisions ofparticular relevance to anibia.Duties accruin to the TerritorySection 104 (1) provides that all duties collected in the Territory or on goodsimported into South Africa and transshipped to the Territory for consumptionthere shall (after appropriate accounting entries) be paid into the TerritoryRevenue Fund.For purposes of determining the amount to be paid into the Territory RevenueFund, Walvis Bay is deemed a part of the Territory.Prohibited imnortsSection 113 (1) 1/ prohibits the importation of undesirable publications, objects orfilms except by permit. Such permits are now issued under the provisions of thePublications Act of 1974 2/ (q.v.). Subsection (3) 3/ provides that whenever aquestion is raised whether a publication, object, or exempt film is undesirable, itshall be submitted to the Director of Publications for decision and action inaccordance with the provisions of the Publications Act.Application to TerritorySection 5 provides that the Territory, including the Eastern Caprivi Zipfel, shallbe considered part of the Republic for the purposes of the Act.I/ As amended by Act No. 42 of 1974, section 49 (a). 2/ Act 1o. 42 of 1974.3/ As substituted by Act no. 42 of 1974, section 49 (b).

- 66 -Customs and FIcise ActTechnical supplementDuties accruing to the TerritoryDuties collected under section 104 are one of the items c6nsidered inzrriving at the formula for revenue-sharing in section 22 of the South-W-estAfrica Affairs Act, No. 25 of 1969. (See Appendix I as to fiscal consequencesof the legislative and administrative "rearrangcments" of 1969.)

Walvis Bav is the only port of any consequence in the Territory. Consequently,the pament into the territorial Revenue Fund of duties collected there contitutes avaluable addition to 'Namibian revenues.ProhibitedipqrtsA decision of the appeal board, established by the Publications Act, as to anypublication, object or film is final and cannot be appealed to the courts.Application to the TerritorySection 5 effectively applies the Customs and Excise Act, and all anend-ientsthereto to the Territory and to the Eastern Caprivi Zipfel.However, there nay be problems as to the applicability of certain provisionscontained in subsequent amending acts. These particular provisions do not amendthe principal Act, but constitute unconsolidated provisions relating to the samegeneral subject; and they are not specifically nade applicable to the Territory. (Seediscussion in Part II, B.)

- 67 -DEEDS REGISTRIES ACTNo. 4T of 193T, as amended(Never legally in effect in Namibia).GeneralThis Act, vhich replaces earlier South African and provincial legislation*n the same subject, indicates how title to land shall be determined, recorded,transferred, etc.The provisions of the Act (succeeding those of the Deeds Registries Proclamation,I/ which it replaces) establish land titles in Namibia. There apparently is noconcept of equitable title in Namibia; and tribal or indigenous rights, predatingEuropean occupation, are not recognized by South Africa.AftinistrationThe Act establishes (or continues) deeds registries in the major cities or regionalcentres throughout the Republic and, as amended in 1972, in Windhoek. 2J Eachoffice is headed by a registrar. The registrars together constitute the deedsregistries regulations board, vhich is headed by a chief registrar. _/The duties of the registrars include, inter alia: examining deeds and documentssubmitted for execution or registration; attesting, executing, and/or registeringdeeds, documents, certificates, bonds, contracts, mineral, leases, servitudes, etc.;keeping registers and preserving records. iSubjects covered b ActThe Act covers, inter alia, transfers of land; special provisions relating to vomen;substituted title deeds; change of title by endorsement; townships and settlements;bonds and mortgages; rights in immovable property; praedfal servitudes; leases;and antenuptial contracts.The Act also covers mineral leases and prospecting contracts, but the provisionsas to these subjects do not apply in Namibia. 5/Application in the TerritorySection 102A V purports to apply the Act (except the provisions on mineral leasesand prospecting contracts) in the Territory, including the Eastern Caprivi ZUpfel.

Section 16 of the 1972 amending Act / repeals territorial laws dealing vith 4pedsregistries. Subsection (2) constitutes a savings clause as to registrations previouslyeffected in the Territory under existing legislation.a Deeds RegistryProclamation, No. 3T of 1939. 2/ Section 1 (1) (a), substituted by Act No. 3 of1972, section 1. / Section 2, as amended by Act No. 3 of 1972, section 2. VfSection 3._/ Section 102A, added by Act No. 3 of 1972, section 13.Added by Act No. 3 of 1972, section 13. V/ No. 3 of 1972.

- 68 -Deeds Registries ActTechnical supplement.'. The Deeds Registry Proclamation, which was repealed in 1972 when the Actwvs purportedly applied to Namibia, was generally similar to the Act, although $tincluded some local~variations. It had been amended by ordinance in 1952,*58, 1963, 1964, and 1967.Subjects coveredThe Act's provisions as to mineral leases and prospecting contracts do not applyin Namibia since the Territory has somewhat different law -- derived from theGerman Protectorate -- relating to minerals. The territorial law, which vests titleto all minerals in the state, regardless of the owner of the surface, is found in theMines, Works and Minerals Ordinance. 1/ (The Ordinance itself is not, of course,legally in effect in Namibia since it was enacted after revocation of the mandate.)Provisions of this Act and of the territorial ordinance dealing with miningand prospecting are apparently superseded by special legislation relating touranium.Tt seems probable that all mineral concessions negotiated with the government, orat least the relevant provisions bounding the concession area and defining thepermitted operations and the conditions affecting them, are registered in theappropriate deeds registry office.Application in the TerritoryThe savings clause covers registrations effected in the Territory under the1968 Ordinance and the State President's Mining Titles RegistrationProclamation. 2/Since section 16 of the amending Act 3/ does not, in fact, amend the DeedsRegistries Act, subsection (3) provides that it applies also in the Eastern CapriviZipfel.1/ Ordinance No. 20 of 1968, section 2. 2/ Proclamation No. R. 90 of 1969.3/ Act No. 3 of 1972.

- 69 -DEPARIURE FRO.1 THE UNION REGULATION ACTNo. 34 of 1955, as amendedggberalThis Act restricts the right of South African citizens to leave the Republic or theTerritory.

It should be read with the Border Control Act, I/ which amends and supplementsit.Departure reouLres aSs1ort or permitSection 2 (a) 2/ prohibits any person from leaving South Africa or Nlamibia for aforeign destination without a valid passport or permit. The penalty forcontravention of the section is imprisonment for not less than three months normore than two years. VIn a prosecution under section 2, section 7 puts the burden on the accusedto prove that he did not leave merely for purposes of transit back to another partof the Republic or Namibia once it is established that he left South Africa.Assisting unlawful departureSection 3 / prohibits conveying any person from South Africa to a foreigndestination if he departs in violation of section 2. The penalty therefor is a fine notexceeding R4,O00 ($4,600) or imprisorment for not more than one year, or bothfine and imprisonment; and the clerk or registrar of a court which convicts anyperson of a contravention of section 3 shall furnish the Secretary ofTransportation with full particulars of the conviction within 14 days thereof. 5-/Section 4 / prohibits assisting anyone to contravene section 2, under penalty of afine not exceeding R400 or imprisonment for not more than six months. 7/Exit permitSection 5 provides that the Secretary of the Interior may issue a permit, valid fornot longer than five years, to any person who wishes to leave South Africa andshall issue a permit, appropriately endorsed, to any person who intends to leavepermanently.Return by permit holderAny person holding an exit permit endorsed for permanent departure who returnsto,:South Africa is irrebuttably presumed to have left the Republit incontravention_/ No. 61 of 1967. 2/ Section 2 substituted by Act No. 61 of 1967, sec. 9.3/ Section 8 (1) (a). 1W/ Substituted by Act No. 61 of 1967, section 10.I/ Section 8 (1) (b), (2). K/ Substituted by Act no. 61 of 1967, section 11. L/Section 8 (1) (c).

Departure from the Union- TOof section 2 and becomes a prohibited ivrirant within the meaning of that term inthe Ad~mission of Persons to the Republic Regulation Act 8/ as from the date heleft South Africa. Prosecutions to be authorized bf AttorneY-GeneralSection 9 prohibits the institution of any prosecution uhder the Act without theexpress authorization of the Attorney-General. Application to the TerritorySection 10 makes the Act applicable to the Territory, including theEastern Caprivi Zipfel. Section 1 defines the "Union" (now the "Republic") toinclude "the Territory of South-West Africa".V_ Act No. 59 of 1972.

- 71 -

Deoarture from the Union Regulation ActTechnical supplementGeneralDeparture from the Territory, as well as from the Republic, is covered by this Act(which is made applicable to the Territory, including the Eastern Caprivi Zipfel,by section 10) since the definition of "Union" in section 1 includes the Territory.For un3known reasons the amendments to this Act made by the Border ControlAct of 1967 were not incorporated into the Act by the compilers of the SouthAfrica Consolidated Statutes. Therefore the two Acts must be read together in thesame manner as other unconsolidated legislation. (It should be noted, however,that the Border Control Act, being enacted after revocation of the mandate, is notlegally in effect in 1'anibia).Persons reouiring - ssport or permit for denartureSection 2 prohibits "any person" from leaving South Africa without a passport orpermit. In this connection "passport" is defined in section 1 as an appropriatedocument issued by the South African governnent to its own nationals, by anotherGovernment to its nationals who are not also South African citizens, or by aninternational organization to persons who are not South African citizens.Despite the use of "any person" in section 2 and the definition of "passport" insection 1, it appears that the Act is primarily directed at preventing the irregulardeparture from the Republic of persons South Africans find hostile to the regime.In this connection it should be remembered that Tamibians Iorn in the Territoryare automatically South African citizens by virtue of the South AfricanCitizenship Act and are therefore covered by the provisions of section 2 even if itis directed at citizens only.!evertheless, it should be noted that the exemption from passport or permitrequirements granted by section 9 as originally enacted in 1955 to personstravelling through South Africa from an outside starting point to a foreigndestination was omitted from the new section 9 substituted by the Border ControlAct, section 12. (Section 13 of the latter Act, which does not emend the 1955 Act,provides that persons travelling through South Africa must have a transit visa.)Section 2 as originally enacted applied to persons over 16 only. Thisagelimitation was removed by the substituted section 2. Apparently to compensatefor this charge, section 14 of the Border Control Act (which does not amend the1955 Act) provides that a person under 16 is deemid to have a valid passport onentering or leaving South Africa if he is accompanied by a parent who has a validpassport or other travel document which includes the child.l/ No. 44 of 1949 (q.v.).

Departure from the Union, T.S.- 72Unlawful derartureSection 2 prohibits departure from South Africa without p&ssport or permit .6nlyif the purpose is to "proceed to any place outside the UniOn ....." It !@ppears thatthis qualification of the section's prohibition exempts therefrom. epartures for another part of the country via a border state, such as travelling

-*ia Swaziland to the northern Transvaal from N atal.Section 12 (1)ter of the Suppression of Communism Act 2/ creates thepreslnmption that any person proved to have left South Africa unlawfully underthe Departure from the Union Regulation Act left for the purpose of undergoingunlawful (= guerrilla) training in violation of section 11 (b)ter of the CommunismAct. Since Africans cannot ordinarly obtain passports or permits, if they leaveSouth Africa, they will normally have to do so in contravention of section 2 of theDeparture Act. Hence, if they return to the Republic, they face not merely thepenalty impDed by section 8 (1) (a) of the 1955 Act, but a minimum of five yearsin prison, or the death penalty, under section 11 (b)ter of the Comnunism Act.If a Ianibian is seized (unlawfully, of course) by South African police just overthe border in Botswana or Lesotho, for example, the presumption of section 7 ofthe Departure Act may be employed to establish that he contravened section 2 ofthe Act, so that he can be convicted under section ll(b)ter of the Com..unism Act.3,Section 2 (b)also prohibits departure from South Africa at any point other than a"por" as defined in section 1 (definition added by the Border Control Act) unlessspecial authorization therefor has been granted by the M,:inister of the Interior.Exit permitSection 5 (2) provides for an appeal to the Minister of the Interior from a refusalto grant a permit. There is no provision explicitly requiring the Secretary (or the.inister) to give reasons for a refusal, and it is unlikely that the courts would findsuch an implicit requirement. 4/ The grant of a passport is, according to SouthAfrican law, a privilege which may be withdrawn at any time.Although section 5 (1) mandates the grant of an exit permit to any person whointends to leave South Africa permanently, such a permit does not authorize aperson "banned" under section 10 (1)(a) of the Suppression of Communism Act toa certain area to leave that area in order to use the exit permit. /2/ No. 44 of 1950. 3/ Added by the new section 2, substituted by theBorder Control Act.1/ Cf. Fillery v. Minister of the Interior, 1955 (1) S.A. 36 (T.), holding the-inister not required to give reasons for his decision under section 4 (W)("prohibited immigrants") of the Admission of Persons to the Union RegulationAct, 1o',. 22 of 1913./ See SobuWke v. Minister of Justice, 1972 (1) S.A. 693 (A.D.).

- 73 -DEVELOPMENT OF SELF-GOVERNMENT FOR NATIVE NATIONS INSOUTH-WEST AFRICA ACT No. 54 of 1968, as amended(Never legally in effect in Namibia)GeneralThis Act was originally designed to implement the "Odendaal Plan" (or"Report") 1/ insofar as it dealt with "native affairs." It has been drasticallyamended as South African plans for fragmenting the Territory have become morecomplex and sophisticated.The Act consists of two parts: the original 1968 provisions, slightly

amended in the following four sessions of Parliament; and extensive amendments,made by the Native Nations Amendment Act of 1973, ?/ most of which are foundin sections 1OA through IOJ and sections 1TA through 1hR.The 1968 Act provided for the consolidation and transformation of theTerritory's native reserves into separate "Bantustans" or "homelands." It alsoprovided for the creation, for each Bantustan, of (i) a legislative council with verylimited ordinance-making powers and (ii) an executive council withcorresponding administrative powers.The 1973 ameidments enable homelands which so desire to become "self-governing,"in the same sense as the South African Bantustans."Homelands" establishedSection 2 (1) 3f implicitly recognizes six "native nations" -- Damara, Herero,Kaokoveld, Kavango (formerly Okavango), East Caprivi, and Owambo (formerlyOvambo) -by defining and bounding their "homelands". It also provides for theestablishment of other "homelands" by proclamation of the State President. 1_/Section 2 (2) 5/ provides that the State President may alter the boundaries of any"homeland" by simple proclamation in the Gazette, without prior approval ofParliament or consultation with the people involved.Government of native nations: legislative councilsSection 4 empowers the State President to establish a legislative council for any"native nation" and to determine how it shall be constituted.A legislative council may enact laws ("enactments") as to some half hundredsubjects listed in the schedule appended to the Act. These enactments are validwithin the "homeland" and, with permission, may be applied to "members of thehomeland" anywhere in the Territory. They may overrule any territorial ordinance-relating to such a subject insofar as the ordinance relates to the1/ Republic of South Africa, Report R.P. No. 12 of 1964. V_/ Development ofSelf-Government for Native Nations in South-West Africa Amendment Act, No.20 of 1973.3/ Substituted by Act No. 20 of 1973, section 2. 1_/ Paragraph (g)./ Substituted by Act No. 20 of 1973, section 2.

Native Nations Act- 7T4"homeland" or members thereof. 6/ All legislative councils are forbidden tolegislate as to matters listed in section 5A 7/, including, inter alia, military, police,foreign affairs, and amendment or repeal of the Act itself.The State President must approve any enactment, and itfaust be publishedofficially, before it becomes law. §/ The South African S4reme Court determinesthe validity of "homeland" enactments. 2/Executive CouncilsSection 6 (1) provides that members selected from the legislative council of a"native nation" shall constitute its executive council. Members of the executivecouncil are responsible for administration of the government of the "homeland;"they head its departments and appoint and dismiss employees. 10/ They are also

expected to supply moral and material leadership and to present "national"concerns to the South African government. l/ Administrative powers, authority,and functions previously vested in the State President, South African Ministers,and the territorial Administration in relation to matters as to which the legislativecouncil may legislate are vested in the executive council.12/Subsection (.) 13/ provides for seconding white civil servants to administrativeposts in "homeland governments."Power of ChiefsSection 6B 1_/ provides that neither the creation of legislative councils nor thegranting of so-called self-government shall diminish or terminate the powers,authority, or functions of chiefs; they may of course be changed or withdrawn bythe South African government.Tribal, community, and regional authoritiesSection 7 empowers the State President to create, recognize ot replace tribal,community or regional "authorities" for African areas not under a legislativecouncil. 1/ He may assign any authority powers and functions from among thoselisted for legislative councils in the schedule to the Act. L/6_/ Section 5 (1) (a), (b), (c) (paragraph (c) added by Act No. 71 of 1974,section 3 (a)), 3) (iubse7tion (3) added by Act No. 71 of 1974, section3 (i)).Added by Act No. 20 of 1973, section 3.Section 5 (2).Section lOD (added by Act No. 20 of 1973, section 5).10 Sections 6 (2), (3), 6A (added by Act No. 20 of 1973, section 4 (1)). 11Section 6 (3) (s), (d).12 Sections 1OF and lOG, both added by Act 20 of 1973, section 5. Y13Substituted by Act No. 70 of 1974, section 1T (1).1 Added by Act No. 20 of 1973, section 4 (1). U_/ Section 8 (b). MX/ Section 8.

Native Nations Act- 75Administrative detailsSections 9 through lOJ, as well as 14A and 16, deal with-'administrative detailsinvolved in establishing legislative councils. They cover, inter alia, revenue fund,auditing of accounts, courts, continuation of certain laws, claims against the"honeland governments," official languages, etc.Urban representatives of executive councilsSections 11 and 12 provide that the executive council of each "nation"13ay nominate a member of the "nation" to represent it in one or more urban areasand to advise it on urban matters affecting the "members of the nation."State President's power to lerislate for homelandsThe State President may legislate by proclanation for homelands (and otherAfrican areas) even if a "homeland" has become "self-governing". Suchproclamations apparently overrule any contrary enactment of a legislative council.L/

Unless "delay would, in the opinion of the State President, be prejudicial to thepublic interest," a draft proclamation must be published in the GovernmentGazette a month before the proclamation becomes effective, and the executivecouncil of the "homeland" must be consulted. However, failure to meet theserequirements does not invalidate a proclamation. LYM'ethod of consultationSection 17 (1) gives the State President full power to decide how "consultations,"as required by the Act, shall take place with a "native nation" or other group ofAfricans."Self-governing native areas": establislrmentChapter 2, comprising sections 17A to 17R, was added by the 1973 AnendmentAct to provide for "self-government" as a transitional phase for a "native nationhomeland" prior, to possible "independence."0Section 17A empowers the State President, after consultation with the legislativecouncil of a "homeland," to declare it self-governing. The remaining sections inthe chapter spell out the essential characteristics of such a self-governing area.Legislative council: self-governing areaThe powers of a legislative council of a so-called self-governing areaare not much greater than those of a "homeland" legislative cOuncil. However,17/ Section 11 (1), (4).T'/ Section 11 (2).

Native Nations- 76subsection (1) of section l7E does authorize a legislative council to amend orrepeal existing Acts of Parliament, as well as territorial ordinances, if they relateto any subject within the council's competence and apply to the area or tomembers of the'nation:? Furthermore, laws made by the council which apply to"homeland members" outside the "homeland" may contain prov'sions foreliforcement anywhere in-. the Territory where such members may be found. 19/Nevertheless, all "homelai.d" enactments require approval by the State Presidentbefore they become effectile. 20/Acts of Parliament and territorial ordinances relating to subjects within thecompetence of a legislative council do not apply to a self-governing area. 21/Proclamation laws of the State President do, however, continue to apply to suchareas, and they apparently override any contrary local legislation. 22_/2abinet: self-governing areaThe executive government of a self-governing area is vested in a "cabinct," whichconsists of a "chief minister" and of other "ministers" drawn from the legislativecouncil. The chief minister is empowered to assign control and administration ofthe departments to the various ministers, and he may reorganize the departments"in the interest of better administration" after consultation with Pretoria. 23/It appears that provisions relating to executive councils and councillorsalso apply to cabinets and cabinet ministers in the absence of specific indicationsto the contrary.

-High courtThe State President may establish a high court for a self-governing area anddefine its jurisdiction. He may second South African judges, all of whom arewhites, to serve on it. Such a court shall function much as the supreme court of aprovince. 24/ Potentially at least, it may pass death sentences on criminaloffenders. / South Africa's highest court, the Appellate Division of the SupremeCourt, hears appeals from such a high court. 26/Financial mattersSection 17J to 170 deal with financial matters.Section 17J defines the moneys payable into the revenue fund of eachselfgoverning area; these are equivalent to moneys payable into the Territory'sRevenue Fund for whites.Section 17K provides that no appropriation or tax law may be introduced orenActed unless the area's minister of finance has so recommended. Section 170requires annual estimates of revenues and expenditures. Section* 17L to N set outrequirements for payments of money from a revenue fund.I9/ Section 17E (2). 20/ Section 17F.21/ Section 17E (3), substituted by Act No. 71 of 1974, section 6. 22/ Section 14(1); see also section 17E (3) (substituted by Act No. 71 of 1974,section 6), (4).23/ Section 17D. 24/ Section 171 (1) - (4).?5/ See Second General Law Amcndment Act, No. 94 of 1974, section 3. 26/Section 171 (5).

Native Nations Act- 77Section 17P provides that the South African Controller and Auditor-General shallaudit government accounts of a self-governing area unless'other-ise provided bylaw.i-ransfer of land to a self-overning areaSection 17Q empowers the State President to transfer land and other publicproperty, real or personal, from the South African government, the territorialAdministration, or the South African Bantu Trust to the government of aselfgoverninS area.Aonlication to Eastern Canrivi Zinfel.Section 1 provides that the Act applies to the Eastern Caprivi Zipfel.

- 78Native Nations ActTechnical supplementGeneralThis Act is designed to supplement the South-West Africa Affairs Act of 1969.The 1969 Act implements the Odendaal Plan as to whites in the Territory :whilethis Act deals with the Africans.The major changes put into effect in 1973 were not, so far as can be ascertained,contemplated when the Act was first drafted. They have been necessitated by

international pressure put on South Africa to grant "self-determination" toNamibia. Their purpose is to assure the fragmentation of the Territory, so that"self-determination and independence" will not interfere with South Africandomination in fact."Native nations"The Odendaal Report recognized 12 population groups in Namibia:- 11 nonwhite groups, including the six "native nations" implicitly recognized insection 2 of the Act, plus the Bushmen, the Nkma, the RehobothBasters, the Coloured, and the "Tswana and others"; and- the white group.(Of the 11 nonwhite groups, the Namas and the 1bhoboth Basters are classified asColoureds rather than as "natives".)HomelandsThe "homelands" proposed by the Odendaal Report and established under the Actare Namibian analogues of the South African Bantustans. They correspondroughly to the former reserves for Africans, which were vested in the SouthAfrican Bantu Trust by the South-West Africa Bantu Affairs Administration Actof 1954 (q.v.)There is no reason to believe that the present boundaries of the homelandsas set out in the Act are necessarily final. Section 2 (2) provides that the StatePresident may alter the boundaries of any "homeland" by simple proclamation inthe Gazette. In fact, all six "native nations" whose boundaries were established bythe original section 2 (1) (a) - (f) in terms of existing legislation or proclamationsnow have boundaries defined by proclamations issued in 1972. 1/ Throughout thehistory of South African administration of the Territory, boundaries of thereserves have been repeatedly altered or revised with little regard for therequire[ment that land of equal value be substituted for the land taken from theAfricans.2/As to the quality and character of the land in the "homelinds," see Wellington,"South West Africa and Its Human Issues" (Oxford University Press, London,1967).I/ See section 2 (1) (a) - (L), as amended by Act 20 of 1973, section 2. 2/South-West Africa Bantu Affairs Administration Act, No. 56 of 1954, section 5.

Native Nations, T.S.- 79ISslative councilsA legislative council may be established only after "consultation" withthe "native nation" affected. As regards the manner of consultation, see sectionl7.(discussed in the digest). There is no requirement that the Ination" must agree.Active opposition of tribal leaders may, however, jeopardize the success of- sucha project, as in the case of the Damara. 3/The list of subjects as to which a legislative council may make enactments (foundin a schedule appended to the Act) is the same for legislative councils of "nativenations" as it is for the self-governing areas. Although the list has grownsubstantially over the years, legislative councils of both types are barred from

acting on those subjects which make self-government meaningful in thecommonly accepted sense: foreign policy, internal security (police), railways andharbours, currency and banking, postal services, etc. Section 10E 3A/ prohibitsvehicle registration and driver licensing enactments from applying to vehiclesregistered or drivers licensed outside the area, unless a vehicle or driver remainsin the "homeland" more than six months.The major differences between the powers of the two types of legislative councilsare as follows:(1) Councils of self-governing areas can have their enactments enforcedoutside the areas against members found anywhere in the Territory.(2) Parliament cannot legislate for the self-governing areas on mattersreserved to them. (The white territorial Legislative Assembly has nopolier to legislate on such subjects for either self-governing areas or"homelands" which have legislative councils.)(3) Legislative councils of self-governing areas can overrule Parliamenton matters within the competence of the councils.Although the powers of these councils may appear rather extensive, it must beremembered that:(1) Their legislative competence is restricted by section 5A.(2) Parliament retains the ultimate power to amend the Native Nations Act,thereby modifying or abolishing the councils' legislative competenceif it so desires.(3) All council enactments require the State President's assent to becomeeffective.3/ See Rand Daily Mail, Johannesburg, 5 August 1971. 3A/ Added by Act 20 of1973, section 5.

Native Nations, T.S.- 80(4) White "advisers" seconded to the "homelands" and self-governing areasexercise, according to report, virtually complete control (director indirect) over African ministers and legislators.(5) Section 14 (1) preserves the power of the State President to legislateby proclamation on all matters for both "homelands" and self-governingareas.;.n fact, the effect of the sections establishing legislative councils forselfgoverning areas is largely to divest Parliament of ultimate control (unless itamends the Native Nations Act or repeals a tabled proclamation of the StatePresident) and place it in the hands of the Prime Minister (acting through the StatePresident).Executive council or cabinetAlthough it is not apparent from the wording of the Act, the proclamations whichestablished the first legislative councils made it clear that, whatever real powerthere is, is vested in the executive councils and not in the legislative councils. (Inthis respect the South African pattern of the relationship between Cabinet andParliament is reproduced in the "homelands."). There is no better indicator of the

distribution of power than the scale of salaries established in 1970 forOvamboland: R3,600 for the Chief (executive) Councillor and R3,000 annuallyfor the other members of the Executive Council; R600 annually for the chairmanof the legislative council and R300 for his deputy. /Behind every Executive Council or cabinet, however, are white administratorswho "may" be -- and, in fact, are --- designated, under section 6 (4) 2/ of the Actto assist the councillors or ministers. Proclamations establishing the legislativecouncils provide that the councillors cannot even reorganize the departmentsestablished for their governments without consulting the white "advisers".Detailed financial regulations established for the then Ovamboland "homeland" in1968 / made it clear that control of revenue, expenditures and funds was solidly inthe hands of the senior white official seconded to the Ovambo government; thereis no evidence in the 1973 amendments that the same control is not still in effect.The ministers may, on occasion, however, exercise arbitrary power -- as inthe instances of public flogging- while white advisers take a "hands-off" attitude.Power of ChiefsParliamentary debates do not explain the significance of or the reason for theenactment of section 6B, preserving the powers, functions and authority of the(government-appointed or -approved) chiefs. However, this is fully in line .VithBantustan policy in South Africa, where chiefs, often appointed by the govern'ent,act as surrogates for the whites.M/ Proclamation No. R. 295 of 1968, amended by Ovambo Enactment No. 4 of1970,section I (Government Gazette No. 2916, 6 November 1970). Salary differentialsare now somewhat less extreme: see Owambo Act 2 of 1975 published inOwamboOfficial Gazette./ Substituted by Act No. 70 of 1974, section 17 (1). 6/ Proclamation No. R. 298of 1968.

Native Nations, T.S.- 81Administrative details: financeBefore the 1973 amendments, the only administrative details of any consequencein the Act covered revenues and financial matters.Section 9 (2) provides that some or all trust funds held_:by the South AfricanBantu Trust for the people of a "homeland" may be transferred to the executivecouncil concerned. This is supplemented by the provisions of section 12 of theSecond Bantu Laws Amendment Act of 1970. 7/Section 10 8/ provides in some detail for the auditing of "homeland" revenuefunds (if any) and trust funds.Section 14A 2/, which empowers the Minister of Bantu Administration andDevelopment to guarantee certain loans negotiated by the executive governmentof a "homeland," represents potentially far more than an administrative detail. Inview of the vast administrative discretion implicit in the section it constitutes afuture political weapon of great potency.

Administrative details: legalSection 10A 10/provides that existing courts shall continue in a "selfgoverninghomeland," but grants the minister of justice power to establish and disestablishmagistrates' courts and appoint judicial officers. However, this power may beexercised only with Pretoria's approval if members of other nations are involved.The State President may transfer existing courts to "homeland" control, but SouthAfrican ministers may intervene as to magistrates' or native commissioners' courtswhen non-members of the "homeland" are affected.Section lOB 11/ provides for the establishment of inferior courts in the"homelands." The Jurisdiction of such courts and their procedure are subject tothe laws governing magistrates' courts, unless such laws are repealed by the"homeland" legislative council. The Attorney-General for the Territory has thepower to transfer proceedings from a "homeland" court to another court inside oroutside the "homeland."Section 10H 12/ makes provision for claims against a homeland government.Section 16 provides that a court shall accept as prima facie evidence informationconcerning (i) whether an African is a "member" of an "authority" or (ii) theexistence and observance of tribal laws and customs, if the information issubmitted in the form of an affidavit by a public official who states therein that heis connected with the "administration of native affairs" and that he hasAct No. 27 of 1970.Substituted by Act No. 27 of 1970./ Added by Act No. 71 of 1974, section 4. 10/ Added by Act No. 20 of 1973,section 5. 11/ Added by Act No. 20 of 1973, section 5. 12/ Added by Act No. 20of 1973, section 5.

Native Nations, T.S.- 82relevant knowledge as to the subject of the affidavit. This provision hasbeen used in a Droceeding brought by Bishops Auala and Winter to prevent.flogging of SWAPO members in Ovamboland. 1/ It could be applied in cases*uch as a criminal trial of an African for "disrespect" to a tribal chief.l4!bfficial lanauaresSection 101 15 provides for three official langua-es for each "homeland:"Afrikaans, English, and one indigenous language recognized by the StatePresident by proclamation in the Gazette. *The State President's power wasopposed by the Opposition, which held thatwhere there is more than one well-developed local languagc, as in Ovanboland and Kavango, the decision should bemade by the legislative council of the area, not by Pretoria. 16/Urban representatives of executive councilsThe nomination of such a representative is to be made only in consultation withthe 1linister of Bantu Administration and Development and with the approval ofthe State President. The State President may withdraw recognition of therepresentative on request of the council or after consultation by the Minister withthe council. (In the latter case it appears that recognition could be withdrawnagainst the wishes of the council.)

State President's power to legislate for "homelands"Section 15 provides for prompt tabling of any proclamation issued under the Actby the State President. Parliament retains power to override such proclamationsunder the section, but this is a very limited and negative authority. -The mainimpact of the provision is that the over-Xhelr-ing power in supposedlyselfgoverning areas is in fact vested in the State President of South Africa.Self-governing native areasSections 17B and 17C 1T_/ grant such areas the superficial trappings ofsovereignty: a flag and a national anthem.In general, the provisions of sections 17A through 17Q 18/, which deal with thegovernment of self-governing areas, parallel those for "ho-.elands" withlezislative councils, but grant marginally more powers and provide for greaterformalities. As regards their powers, see the digest sections on legislative councilsand the technical supplement on the sa.e subject. Greater formality 'is found insuch provisions as that in 17F (1), providing that a bill passed by a legislativecouncil is to be submitted through the office of the ComissionerGeneral LforNative Nations in South West Africa/ to the Minister of Bantu Tdministration andDevelopmtent for presentation-to the State President for his assent. The enactmentis titled a "law."3/ See Wood and others v. Ndongwa Tribal Authority and another, 1974 (3) S.A.557 (S.W.A.), rev'd., 1975 (2) S.A. - (A.D.)._W See Regulations for the Administration of the District of Ovaboland,Proclamation No. R. 17 of 1972, reulation 11. 15/ Added by Act No.20 of 1973,section 5. 161 House of Assembly Debates (Hansard), 20 Fel' iary 1973, cols.1002-9. 17j Added by Act No. 20 of 1973, section 6. T-h/ Added by Act No. 20of 1973. section 6.

- 83 -DISABILITY GRAINTS ACTNo. 27 of 1968, as amended(Never legally in effect in Namibia)GeqeralThis Act provides for the payment of grants and allowances to South Africanadults who are so physically or mentally disabled as to be unable to earn a living.It contains minimal substantive provisions, leaving virtually all matters to bedetermined or elaborated on by regulation.Racial discriminationSection 15 (1) empowers the Minister to promulgate regulations as to nearly allmatters touched on by the Act, and subsection (3) 1/ permits differentregulations to be made as to different areas or different "classes or populationgroups". Section 16 (1) 2/ empowers the State President to assign administrationof the Act as to persons of one class or population group to one Minister and as toone or more other classes or population groups to one or more other Ministers.AMlication to the TerritorySection 16A 3/ makes the Act and amendments applicable to the Territorj,includinC the Eastern Caprivi Zipfel. The 1971 Anendment Act 4/ repeals the

South West Africa Social Pensions Ordinance of 1965 insofar as it related todisability grants and related matters.I/ Substituted by Act No. 17 of 1971, section 3 (b). 2/ Substituted by Act Ho. 17of 1971, section 4.Added by Act flo. 17 of 1971, sec. 5Section 6 (1).

- 84 -Disability Grants ActTechnical suvnlementacial discrimination: definitionsAs originally enacted, the statute contained definitions of whites, Bantu,coloureds, Chinese and Indians. These definitions were removed 1/ when the Actwas made applicable to Namibia. Apparently this deletion was made to try tocreate the illusion that the Act is non-discriminatory, to improve the SouthAfrican government's position, since the Nenibian question was then beforethe International Court. 2/Racial discrimination: different rerulationsThe effect of sections 15 (1) and (3) and 16 (1) is to make possible discriminatoryadministration of the Act although the Act does not appear to sanctiondiscrimination: Read together, these sections enable the various Ministers chargedwith administering the Act as to different "population" (i.e., racial) groups to hidethe fact that different regulations apply to the different races by printing theregulations in different issues of the Gazette on different dates under differentdepartmental headings.Racial discrimination in practiceOpposition M.P.s have repeatedly claimed that social benefits, such as disabilitydrants, are paid to whites, Coloureds and Asians, and Africans on a 4:2:1 ratio, 3/although government spokesmen have denied this. It is probable that. pensionsgranted under the Disability Grants Act more or less follow the-ratio.I/ y Act No. 17 of 1971, section 1 (a). 2/ See House of Assembly Debates(Hansard), 16 March 1971, cols. 2878-85 passim.3 See Debates, 4. March 1971, col. 2026; 27 April 1971, col. 5334; 15 June1971, col. 9250.

- 85 -ELECTORAL CONSOLIDATION ACTNo. 46 of 1946, as amended(Section 6 (1) never legally in effect in Namibia)~ne ralThis Act covers almost all aspects of elections and the electoral process: thefranchise; registration of voters; conduct of elections; election expenses; corruptand illegal practices and offenses; election petitions; and miscellaneousmatters. It was applied to Naibia by the South-West Africa Affairs Anendnent Actof 1949 (q.v.).

In South Africa this Act is supplemented by the Separate Representation of VotersAct and the Prohibition of Political Interference Act, neither of which, however,applies to Namibia.Restriction of franchise to "non-communist" whitesSection 3 (1) restricts the franchise to white citizens of South Africa over the ageof 18 who are not otherwise disqualified.Section 6 (1) L/ provides for the disqualification of all persons convicted ofcertain crimes. Among them are: treason (excluding treason committed during theSecond World War); any offense under the Terrorism Act; and violation of abanning order or any other offense under the Suppression of Coimrunism Actpunished by mandatory imprisonment.Establishment of electoral divisions"Delimitation of electoral divisions" is not covered in this Act. Apparentlybecause of its importance to the manipulation of the electoral process, it is spelledout in the South-West Africa Constitution (q.v.) for the Territory and in the SouthAfrican Constitution for the Republic.Tensi of territorial Legislative AssemblyThis subject is also covered in the South-West Africa Constitution, asamended (q.v.)./ Substituted by Act No. 99 of 1969, section 2.

- 86 -Electoral Consolidation ActTechnical supDlement-&ts referred to in the direstof this ActSouth-West Africa Affairs Amendment Act, No. 23 of 1949Separate Representation of Voters Act, No. 46 of 1951Prohibition of Political Interference Act, No. 51 of 1968South-West Africa Constitution Act, No. 39 of 1968Republic of South Africa Constitution Act, No. 32 of 1961Terrorism Act, No. 83 of 1967Suppression of Communism Act, No. 44 of 1950Electoral Consolidation Act of 1946 was amended since 1968 by:Electoral Laws Amendment Act, No. 99 of 1969 Electoral Laws Amendment Act,No. 12 of 1970Application of Electoral Consolidation Act to I anibiaSection 34 of Act No. 23 of 1949 applies this Act to Namibia, presumablyincluding the Eastern Caprivi Zipfel. (For a discussion of the application ofstatutes to the Eastern Caprivi Zipfel, see Part II, B (2).Section 1 of the Act contains a definition of "white person" added byElectoral Le.ws Amendment Act of 1962. 1/ The definition refers to the definitionof "white person" in the Population Registration Act, No. 30 of 1950, as amended.It would appear that this definition is intended not to be applied to Namibia. (Asto the applicability of the Population Registration Act t9 Namibia, and as topopulation classification generally in the Territory, see digest of

Identity Documents in South-West Africa Act.) Section 60 of the 1962Amendment Act provides that section 1 (e) of the 1962 Act "shall not apply inSouth-West Africa, including the Eastern Caprivi Zipfel ... or in the port andsettlement of Walvis Bay". Apparently this is intended to mean that thedefinition of "white person" added to section 1 of the principal Act by the 1962Amendment Act shall not apply to any person who claims the right to vote in theTerritory, including the Eastern Caprivi Zipfel, or in Walvis Bay.Restriction of franchise to whitesAll Namibians are South African citizens. Citizenship was conferred upon :teminvoluntarily by the South Africa Citizenship Act. 3/The South-West Africa Affairs Amendment Act of 1949 (q.v.).indirectlyrequired Members of Parliament elected from the Territory to be. white byproviding that they must be eligible to be registered as voters -- i.e., that they mustqualify under section 3 (1) of this Act.I/ Act No. 72 of 1962, section 1 (e). 2/ As substituted by Act 1No. 51 of-1964,section 29. 2/ Act io. 44 of 1949, sections 2 (2), 3, 5 (1).

Electoral Consolidation, T.S.- 87Di suaification by reason of convictionThe disqualification based on a conviction for treason is limited to .Sonvictionsobtained after 10 June 1950 ,i/, approximately two sears after I.Ihe presentNational Party government came to power. Many of its members, .ncluding thepresent Prime Minister, were interned during the War for their pro2jazi activities.All such persons who were accused of treason had been tried and/or released bythe date set in section 6 (1) (a) (i); so this disqualification provision did not costthe Party any votes. TCompare section 6 (1) (a)(ii), which provides that a conviction of murder, whenever obtained, becomes apermanent disqualification. And compare also the provisions as to convictionsunder the Terrorism and Suppression of Communism Acts, discussed immediatelybelow.)Section 6 (1) (a) (iv) provides for disqualification of voters based onconviction of an offence under the Suppression of CorLmunisn Act or theTerrorism Act for which the convicted person "has been sentenced to a period ofimprisonment without the option of a fine ...." Since a prison sentence ismandatory for any violation of the Terrorism Act, conviction under the Actamounts to an automatic disqualification. Since a prison sentence is likewisemandatory upon conviction of violating a banning order (even an inadvertentviolation, through negligence or other non-criminal circumstances), such aconviction, as well as conviction of several other offenses under the Act, alsoamounts to automatic disqualification.It should be noted that by reason of the date of its substitution, section6 (1) is not legally in effect in Nlamibia.i mplied repeal of Union Proclamation 103 of 1939Union Proclanation No. 103 of 1939 extended the franchise to white (European)women in the Territory by deleting the word "male" where it occurred in the

Schedule to the 1925 Constitution (South-West Africa Constitution Act, 1o. 42 of1925, now repealed) dealing with qualifications for exercising the franchise. Itwas repealed by implication by the extension of the Electoral Consolidation Actto the Territory.I_/ Substituted section 6 (1) (a) (i).

- 88 -GDERAL LAW AMEJDMENT ACTNo. 102 of 1967, section 22(Never legally in effect in Namibia) GeneralThis law ends the prohibition, required by the terms of the mandate agreement,against providing intoxicating liquor to Africans. Prohibition endedSubsection (2) empowers Africans to purchase, possess, obtain, or deal inintoxicating liquor subject to regulations issued under the section.Subsection (3) empowers the Minister of Bantu Administration and Developmentto grant permission to any urban local authority, any association, or any statutoryboard or body to sell liquor to Africans for consumption on or off the premises.The State President may issue regulations governing suchactivities, but he may not authorize the manufacture or brewing of any substancecontaining more than 5% by volume of alcohol. /Subsection (4) authorizes the holder of a liquor license to sell liquor to Africans.OffensesIt is an offense to consume, or to allow anyone to consutme, liquor on thepremises in contravention of regulations issued under the section. 2/ Apulicationto the TerritorySubsection (1) provides that the section applies to the Territory, including theEastern Caprivi Zipfel.Technical supoplementRe-ulat ionsProclamation Io. 205 of 1968 governs the supply and sale of liquor toAfricans in the Territory and the brewing, selling and supplyingof "kaffir beer" in the Territory.1/ Subsection (5) (a), (c). 2/ Subsection (6).

- 89 -IDENTITY DOCU!MNTS IN SOUTH-WEST AFY.ICA ACT No. 37 of 1970(Never legally in effect in Namibia)This Act applies to the permanent residents of .Iamibia three of the four principalprovisions applied to South Africans by the Population Registration Act 1/, viz:the requirements that every person subject to the Act (1) shall possess (andproduce on demand of certaih officials) an identity documentcontaining substantial amounts of personal information; (2) shall have an identitynumber; and (3) shall be listed in the central population register maintained inPretoria.

The major provision of the Population Registration Act which is not incorporatedin the South-West Africa Identity Documents Act is that requiring classificationby race, i.e., as "Bantu", coloured, or white.Aplication of ActOn its face the Act subjects every permanent resident in the Territory to the threerequirements set forth above. However, section 12 provides that the StatePresident may exclude "any class of persons" from the operation ofthe Act; and the Minister of the Interior has indicated that the govermnent intendsto exempt virtually all Africans, except the Nama and Africans who have drivers'licenses or firearms licenses. 2/ Thus, for practical purposes, the legislationapplies to whites, coloureds, Rehoboth Basters, Naa, and a handful of Africanswho have special licenses.Identity documentsEach identity document must contain,in addition to the identity number of theholder, the following information:date of issue of the document;name, birthdate, sex, country of birth, and citizenship;a recent photograph (over 16);the particulars as to marriage as found in the marriage register;information as to his or her compulsory immunization;driver's license;firearm license;usual residence and post office address;electoral division and polling district and an indication whether the personhas voted;1/ Act No. 30 of 1950, as amended.2./ House of Assembly Debates, (Hansard), 30 July 1970, col. 707; ibid., 4August1970, cols. 1062-63 (Minister of the Interior).

Identity Documents- 90after death, particulars furnished in the depth notice; andif the person permanently leaves the Territory (unless for the Republic),the date of departure. 3/AL3though no provision is made for information as to the holder's populationgrwup, such a classification is implicit since the identity number contains onedigit based on such classification.The Act provides that any peace officer may require a person to identity himselfor herself and to produce his or her identity document within seven days. Failureto produce the document is punishable by a fine of not more than R200 ($230),imprisonment for up to six months, or both. 4/Identity numbersThe identity number given to the holder of an identity document is unique to himor her. It consists of thirteen digits which are coded to give the holder's birthdate,

sex, birth number, citizenship, and population group, followed by an internalcontrol number. j/Population registerThe Act does not specifically provide anywhere that the info iation recorded inthe territorial identity documents shall be filed in the central population register inPretoria. However, it is clear from extraneous evidence that it will be.Administration of the la 'The Act defines and provides penalties for eight different offenses relating toidentity documents and for unlawful disclosure of information in such documentsor the central register. 6/Section 7 (1) requires the holder of an identity document to notify the authoritieswithin 14 days of any change in his or her "ordinary place of residence or postaladdress". Subsections (2) and (3) require the owner of any premises where adocument holder is permitted to reside to give such notification if the holder failsto do so.Section 9, which is described as preventing communication of information in theregister or identity documents, actually appears to authorize disclosureiA-a wide variety of circumstances: Not only may any official body obtain suchinformation for any of its authorized purposes, but any person may, upon writtenailication, obtain information from the register about any other person listedthfrein if the Secretary of the Interior or his deputy believes that the disclosure isin the interest of the person concerning whom the information is sought. 7/I Section 2 (2) (a) - (f), (h) - (m).Sections 8, 11 (1) (e)./ Section 3 (2); Debates, 30 July 1970, col. 704. 6/ Section 11 (1).7/ Section 9 (2) (a), (b).

- 91Idniy Documents in South-West Africa ActTechnical supplementThe South-West Africa Identity Documents Act in effect exlepnds to theTerritoryl the provisions of the South African Population Regis tation Act,.mitting racial classification in overt form. A government spo..esman stated n thisconnection that the system of identity documents for territorial iniabitants would"result in the same benefits for the inhabitants of the 'Territory Las thecomparable system had for inhabitants of the Republic".l/The lational Party parliamentarian who went on to state that the territorialAdministration would welcome the introduction of any identity docirnent systemin Nanibia undoubtedly realized that the Act would provide the government withnew means of internal control over whites as well as over "passing" by Coloureds.But population registration was extolled as protecting not only "individualfreedom, but also ... the freedom of the individual in all the social contexts inwhich he finds himself ..." 2/Racial or population classification

The trend of the early seventies to remove overt racial references and raciallydiscriminatory provisions from legislation which applies to Tanribia is discussedelsewhere. (See Appendix III to this digest.)It was due to the decision not to introduce racial classification in Namibia that thegovernment concluded it was better to introduce separate identity docwrientlegislation there rather than to apply partially the Republic's PopulationRegistration Law. 3/It should be noted, however, that although there is no official racial classificationin the Territory, there has long been administratively determined ponulationclassification (i.e., white, Baster, Bushman, Damara, etc.). It seems highlyunlikely that anyone who is so classified is not unofficially assigned to a racialcategory as well by the race-conscious whites of both the Republic and theTerritory. Indeed, in debate on the Bill, the Opposition pointed out that a personwho is classified by race in South Africa and subsequently becomes a permanentresident of the Territory automatically carries with him or her a South Africanracial classification. 14/A2plication of the ActThe State President acts to exclude classes of persons from the operation of theAct by proclamation in the Gazette. /The Minister of the Interior predicted that eventually the le-mas and the Sasterswould set up their own system of identity documents and be exempted Zrom theapplication of the Act. 6/ Meanwhile the government estimated that,1/ House of Assembly Debates (Hansard), 30 July 1970, col. 703. / Ibid. 28July 1970, col. 573.3/ Ibid., 30 July 1970, cols. 702-3. !i Ibid., 28 July 1970, col. 644; see section 2(h). / Section 12.House of Assembly Debater (Hlansard), 30 July 1970, col. 707.

Identity Documents, T.S.- 92even with computerized operations, it would take about five yeArs to implementfully the law as to the four population groups in question, which in 1960 totalledsome 132,000 people or about 25% of the population ot the Territory. 7/ (Thatnumber has now risen to around 200,000.) 8/The Act is not specific whether Africans who are listed in the central PopulationRegister because they have drivers' or firearms' licenses will be given identitynunbers and documents. However, it seems probable that they will receive at leastthe former, and quite possibly the latter (although they already have passes).Identity docvmnentsAs of the date of enactment of the Identity Documents Act, the information to berecorded in such documents was to be supplied by the holder or by his or herparent or guardian if he or she was too young or incompetent. 2! As to personsborn after the commencement of the Act, however, section 4 (2) provides that thefurnishing of relevant data for the birth register should be deemed the furnishingof information for the identity documents.

In addition to the information which is required, the document may also containthe following information: additional information as to the holder's marriage andnon-compulsory imnunizations; blood group; and other pertinent personal healthdata. 10/ However, an Opposition member (referring to the equivalent provisionsin the Population Registration Amendment Bill) suggested that, with all the blankpages in the document, it might subsequently include radio licenses, land bankloan information, etc. ii_/As indicated in the digest, each identity document must contain a recent photo ofthe holder if over 16, the photo supplied at the holder's expense; he or she may berequired to replace it when it is no longer a good likeness. 12/ Docuiments issuedto children are valid only until they reach 16, at which time each-child mustobtain a regular identity document bearing his or her photo. 13/The exclse that an identity document has not been issued to a person required toproduce one is not a valid defense unless he or she shows that the non-issuancewas not caused by his or her own failure or neglect. 14/Identity numbersThe thirteen digit identity numbers issued to all residents of the Territory who aresubject to the Act was explained by the Minister of the Interior to the SouthAfrican House of AsseLibly as follows:(T)he number of a male person who was born on 10 December, 1940, (who) isa South African citizen and a member of the Rehoboth polplation group7/ See the Odendaal Report, paragraph 105, for 1960 figures.Die Suidwes-Afrikaner, 7 October 1975; see also somewhat higher UN estimates.9/ Section 4 (1); Debates, 30 July 1970, col. 7014. 10/ Section 2 (2) (e), (f);Debates, 30 July 1970, col. 703. 11/ Debates, 27 July 1970, col. 500. 12/Section 5 (1).13/ Sections 2 (3), 5 (1); Debates, 30 Juy 1970, col. 704. 14/ Section 11 (2).

Identity Documents, T.S.- 93will be the following: 401210/5001/07/1. The figures are interpreted as follows:"40" is the year of birth, "12" is the month and "10" theday of birth. The "5001" indicates the male sex. I told the hon. members yesterdaythat a number above 5.000 means "male" and below *3000 "female".The "07" indicates the population group to which I referred-here. The "0"indicates that he is a South African citizen. The Rehoboth- populationgroup hic'/ is then indicated by the figure "7". The "i" at the endis the control number which is necessary to establish that the particularsare correct .... 15/It should be noted that births are numbered sequentially each day, so that "5006"should represent the sixth male baby born on the day in question. 16/Identity numbers assigned to territorial residents vary from those assigned toSouth African residents only in the formulation of the eleventh and twelfth digitalgroups, which indicate citizenship and population group for the former, ratherthan citizenship and racial classification as for the latter. 17/Population register

References to the population register are infrequent and oblique in the Act, and itdoes not appear in any section rubric. The only references found are in sections 1(iv),defining "register"; 5 (2) (a), (b); and 10 (1) (i).Section 4 of the Population Registration Act 18/ provides that the populationregister shall include the names of "all persons to whom identity documents havebeen issued in terms of the Identity Documents in South-West Africa Act, 1970",and government spokesmen have confirmed intentions to implement thatprovision (substituting population for racial classification data). 19/The exemption of virtually all Africans (other than Namas) from the operation ofthe Act and therefore from inclusion in the register appears to parallel the patternfollowed in the Republic where Africans with "homeland" citizenship certificatesare not ordinarily listed in the register. 20/ The Minister of the Interior hassuggested in Parliament that the homelands (and possibly also the Namas andBasters) will eventually set up registers of their own citizens modeled on theSouth African pattern. 21/Administration of the lawThe Act contains a number of detailed administrative provisions, among others,ensuring the correctness and validity of identity documents and granting vastregulatory powers to the State President in connexion therewith. 22/1k/ Debates, 30 July 1970, cols. 716-17.1 / Ibid., col. 704.IT Ibid.i71/ Substituted by Act No. 29 of 1970, section 3. ji_ Debates, 27 July 1970,col. 486; 30 July 1970, cols. 703-40 see PopulationRegistration Act, No. 30 of 1950, section 4, proviso (substituted by Act No. 29of 1970, section 3).20/ Debates, 28 July 1970, col. 612; 21 August 1970, cols. 2315-6. Forcomposition of the register in 1970, see ibid., 27 July 1970, cols. 489, 496. 21/Ibid., 30 July 1970, col. 707; 4 August 1970, col. 1063. 22/ Sections 6, 7, 10, 11(1) (a) - (d), (h).

Identity Documents, T.S.- 94Many of the criminal provisions are quite stringent, and, as is frequently the casewith South African law, in many instances the burden of proof is put on thedefendant. (See, e.g., section 11 (3), which creates a ifresumption that mutilation,defacenent, alteration, imitationstor destrucion of an identity document was donewith intent to deceive.)- In the face of strong opposition to the provisions ofsection 7 requiring the holder of . document, as well as the owner of any placewhere he or she resides, to report any change in the document holder's address tothe authorities, the Minister of the Interior made it clear that the effectiveness ofthe law would turn on the enforcement of that section, which is backed bycriminal penalties. 23/ It should be noted that section 10 of the PopulationRegistration Act, which similarly requires notice of change of address by anyonelisted in the central register (or in default thereof, by his or her landlord), appliesto the Territory. g4/

For a discussion of the provisions allegedly prohibiting communicationof information in the register of identity documents, see House of AssemblyDebates (Hansard), 27 July 1970, cols. 488-89, referring to similar provisions inthe Population ReSistration An.endment Bill.23/ Debates, 30 July 1970, cols. 705, 709. A/ Act 110. 30 of 1950, section 10(5) (substituted by Act No. 29 of 1970,section 7); Debates, 30 July 1970, col. 703.

- 95 -LAND BANK AITEMD.2,1T ACT No: 31 of 1969, as amended (Never legally ineffect in Namibia) Gerralz This Act abolished the Land and Agricultural Bank of South-'.;7est Africa bymerging it into the South African Land and Agricultural Bank. Effectuation ofmerteIn very broad terms, section 2 abolished the territorial bank and transferred itsassets, rights, liabilities end obligations to the South African bank. Section4 provided for the transfer of staff.Section 3 provides for the interpretation of references to the territorial bank inlaws, documents, etc. Applicability to the TerritoryThe Act is not itself made applicable to the Territory, although it is clearlyintended to be applicable.However, most of its provisions other than those referred to above amend the so-called "principal act", the Land Bank Act of 1944, 1/ and the 1944 Act is(purportedly) made applicable to the Territory, although not to the Eastern CapriviZipfel, 2/ by the 1969 Act. 3/Section 21 of the Amen&dent Act repeals territorial legislation concerning theterritorial bank.Act No. 13 of 1944.See definition of "the Territory", added by Act No. 31 of 1969, section 5. See Actio. 13 of 1944, section 74A, added by Act No. 31 of 1969, section 18.

- 96 -Land Bank Amendment ActTechnical sunilement9ffect of substantive Drovisions of the ActThis Act removes from the control of the territorial Legislative Assembly a veryeffective financial mechanism by which territorial farmers were assisted ingradually developing water supplies and building up successful ranges andfarms despite generally poor soil, meagre rain, and periodic drought. The bankwas in effect, if not in terms, a "white" institution, serving whites only.The merger may give more flexibility to land bank services by increasingavailable capital and by increasing the area served.However, there will be disadvantages for the Territory as well:(i) While it is unlikely that the territorial agriculture would ever have been ableto compete generally with the Republic on favourable terms, the merger of theterritorial bank into the South African bank assures Republican control over credit

for territorial farmers and therefore Republican control over a basic factor in theirability to compete with South African farmers.(ii) The merger of the territorial bank into the South African bank binds theTerritory more firmly to the Republic politically, economically, andadministratively, thereby making it more difficult for the Territory ever to obtainfull independence.Effectuation of mergerThe scope of section 3 is limited. It does not mention certain consequentialchanges that have to be made in other legislation as a result of the merger of thebanks. (See, e.g., the formula for South African revenuesharing with the Territoryfound in section 22 of the South-West Africa Affairs Act, No. 25 of 1969,discussed in Appendix I to this digest.)Anlication to the TerritoirSince the 1969 Amendment Act was enacted after revocation of the mandate, it isof course invalid as far as the Territory is concerned.

- 97 -LEGAL AID ACTNo. 22 of 1969, as amended(Never legally in effect in Namibia)GeeralThis Act establishes a government-controlled system of legal aid for indigentpersons to replace the hit-or-miss private system which existed in many of themetropolitan areas before governument subsidies were withdravm in the early1960s.The Act contains only one reference to "legal aid" in its text. 1/ Its provisions areother-wise entirely concerned with establishing the mechanism by which legal aidmay be rendered: the (national) Legal Aid Board. Substantive provisionsconcerning qualification for legal aid and the scope and nature of such aid arefound in a so-called "General Guide for Legal Practititioners" issued by the LegalAid Board on 29 March 1971 and analyzed below. Leal Aid BoardSection 2 establishes a Legal Aid Board, which is responsible for providing legalaid for indigent persons or for seeing that legal aid is provided.It consists of:a judge of the Supreme Court appointed by the Minister of Justice;I practicing advocate (barrister) and 4 practicing attorneys (solicitors)nominated by their'bar societies and appointed by the Minister;the Secretaries for Justice, Bantu Administration and Developient, andSocial Welfare and Pensions;the State Attorney; andan additional member appointed by the .1inister of Justice. 2/The term of the appointed Board members is determined by the Minister ofJustice. 3/The work of the Board is to be supported by Parliamentary appropriations. 4/Anulication to the TerritorySection 9A 51 makes the Act applicable to the Territory, including the

Eastern Caprivi Zipfel.1_/ In the first sentence of section 3. 2/ Section 4 (1).3/ Section 4 (3).T/ Section 9 (1).2/ Added by Act No. 56 of l7l, section 1.

- 98 -Legal Aid: General Guide for Legal Practitionersdated 29 March 1971-generalThis "Guide" constitutes, in effect, regulations issued by the Legal Aid'Soard. They were issued two days before the system went into effect, but nearlytwo years after Parliament enacted the basic legislation.The system has been operating under this Guide for several years. Sne commentson the actual operation are included in the digest to flesh out the provisions of theGuide, and others are found in the technical supplement.Administration of the ActParagraph 1.1 provides for a Director of Legal Aid, the chief executive officer ofthe system.The Guide does not explicitly provide for the appointment of local 1pgal aidofficers, but implicitly assumes their existence. 6/ In January 1972 there were 480part-time legal aid officers (magistrates and Bantu AffairsCo -mussioners) in 400 legal aid offices, including at least 21 in the Territory. 7/A legal aid officer interviews applicants for aid, passes on the financial eligibilityof each, determines whether his or her case comes within the Board's guidelines,and, if the applicant qualifies, refers him or her to an attorney. 8/Financial eligibilityAlthough the Guide does not spell out financial eligibility, the.*1971 PaceRelations Survey has reprinted the Board's standards. As of that date, legal aidwas available without cost to an unmarried person with annual earnings of lessthan the amount listed in column (2). He was required to pay part of the costs,calculated on a sliding scale, if his earnings exceeded the amount in colu mn (2)but were less than that in column (3). If they exceeded the latter amount, hereceived no legal aid at all.(1) (2) (3)unmarried white P612 R972unxarried Coloured or Asian R294 R390unmarried African R24o R300 2/6/ Paragraph 2.1/ Survey of Race Relations, 1971 (Institute of Race Relations, Johannesburg,1972), p. 79.8/ Paragraph 2.9./ Page 80.

Legal Aid: Guide- 99

The sliding scale for persons whose annual earnings lay between the amountslisted in colums (2) and (3) directly above required contributions to legal costs asfollows:whites: R5 for every R120 above the amount listed in column (2)Coloureds and Asians: RO.75 for every RIO above the anount Msted in col-mn(2)Africans: RO.50 for every R10 above the aount listed in column (2). 10/It may be assumed that the standards of financial eligibility are subject tomodification to reflect sizable changes in the cost of living.alification for aid in criminal mattersWhen a criminal matter is involved, the legal aid officer is required to considerwhether the applicant will be adequately protected by court procedures if he orshe is not represented by counsel and whether, under all the circumstances of thecase, "it would be just and reasonable for the accused to be represented bythe Board". 11/Paragraph 3.2 of the Guide Generally excludes aid in the following cases:(a) when the accused pleads guilty;(b) when the matter is so simple the accused can act for him or herzuIf;(c) traffic offences;(d) preparatory examinations;(e) if the legal aid officer is satisfied that the applicant is idle, dissolute,or dishonest or that his or her inability to pay for defense arises fromhis or her own misconduct or neglect; and(f) for the institution of a private prosecution.In addition, legal aid shall not be granted unless the attorney to whom anappqicant is referred is satisfied that he or she has a prima facie defense or that, ifthe applicant pleads guilty, there are mitigating circumstances that should bubrought to the attention of the court. 12_/Applicants who face a possible death sentence do not qualify, as they are entitledto pro deo defence. 13/RuLAification for aid in civil mattersAid is to be granted to a financially eligible applicant in a civil matter unltss:(1) the legal aid officer is satisfied that the applicant leads an idle,dissolute, or dishonest life or that he or she is unable to bear thelegal costs him- or herself on account of his or her own-misconduct orneglect; orLO rid.11/ Paracraph 3.l.b.12/ Paragraph 5.2.1.L3/ Band Daily !ail, 19 Februarl 1970; Argus, 15 April 19E9, quoting the :inisterof Justice.

Legal Aid: Guide- 100(2) the attorney to whom the matter is referred is of the opinion that(a) the applicant seeks to bring suit in a trivial or~vexacious

matter;(b) the rendering of legal aid will give the applicant "no true orreal benefit";(c) the costs are out of proportion to the desired results; or(d) the applicant lacks a prima facie claim or defense, as the casemay be. 14/Cases brought in forrna pauneris are not handled by the Legal Aid Board. i_/Legal aid for appealsAn attorney may prosecute an appeal only with the written consent of theDirector if he or she is satisfied that there is a reasonable prospect of success.16/The grounds set out in paragraph 3.2 for refusing legal aid in criminal mattersapply also mutatis mutandis in determining whether to grant aid in an appeal froma conviction. 17/Cession of costsCosts awarded to a legal aid client in an action must be ceded to the Board. Theyare set off by the attorney against his or her account. 1/ Lawyers' feesThe Board undertakes to pay normal fees to attorneys, but in case of disagreementprovision is made for the reference of the bill of costs to the taxing master of thecourt. 22/A schedule of fees is attached to the Guide, beginninS with P20 per day for courtappearance in a defended action and R1O per day for court appearance in anundefended action. LO/]/ Parazraphs 4.2, 5.2.1. ! Argus, 15 April 1969, quoting the Minister ofJustice.Paragraphs 5.2.2, 6.2., 6.3. 17/ Paragraph 6.2. /Paragraph 8. See also Legal AidAct, section 8A (added by Act No. 102 of1972, section 24). 12/ Paragraph 11.2. 20/ Annexure C.

- 101 -Lepal Aid ActTechnical supplementGeneralGovernment subsidies for private legal aid schemes were withdrawn in 1961,several years before the Defence and Aid Fund was banned. Only theJohannesburg Legal Aid Bureau survived: In 1972 it was still functioning withvolunteers working part-time and a small subsidy from the municipality. l/It is clear that the various private legal aid organizations w'hich functioned before1961 varied Creatly in the scope of their service, tLeir effectiveness, and theiremphases; and, of course, they existed in only a small number of metropolitancentres. In theory, the substitution of a government-controlled system, entirelysupported by public funds (plus some !private donations, bequests,and contributions) extended legal aid of a uniform quality, subject to uniformstandards, to all parts of the Republic, as well as to the Territory.In fact, an analysis of the Board's first months of operation suggeststhat aid has to all effects and purposes been restricted to poor whites seekingdivorces or assistance in other civil matters.

Legal Aid BoardA major criticism of the Board as constituted is that it is too dependent on theMinister of Justice. Except for the government officials who are membersex officio, members are appointed for terms of not more than three years, asdetermined by the Minister; and the Minister may terminate any appointment atany time "if in his opinion there are good reasons for doing so ......" 2/ A RandDail Mail analysis of the new legal aid system has quoted an Americancommentator as stating:South Africa has failed or refused to recognize the inherent danger to the rights ofcriminal accused which is posed by combining law enforcement andlegal aid in the same department. 3/This criticism of the close ties between the Board and the Minister is emphasizedby the fact that his'first selection of an "additional member" was a person notnominated by the bar societies: Mr. W.M. van den Berg, S.C., AttorneyGeneral ofthe Cape. 4/I_/ The Star, Johannesburg, 10 August 1970; 25 January 1972.2/ Section 4 (3) (a), (c).3/ Rand Daily Ma l, Johannesburg, 5 June 1971.I/ Rand Daily 1Mail, 9 January 1970.

Legal Aid, T.S.- 102Administration: legal aid officialsThe Act does not specifically provide for any officials & staff apart from theBoard itself. However, section 7 empowers the Board ko "delegate to anymember, officer or agent of the board or to any officei in the public-service any of the its powers ....," and section 3 (3) has a "necessary andZincidental" powers clause.The first Director, appointed under paragraph 1.1 of the Legal Aid Guide, wasMr. J.J.A. IMostert, fonerly a control prosecutor in the Johannesburg .'agistrate'sCourt and then a magistrate for seven years before his appointment. /Although the Board hopes to have its own legal aid officers in the larger centres,at present such officers are simply magistrates or Bantu Affairs Commissionersgiven an additional title and functions. Africans normally encounter these officialswhen they are in trouble with the law, which these officials represent and enforceto the great detriment of all Blacks. Conse--% quently it is not surprising that, asthe Rand D)aily Mail points out, few> Africans sought aid during the first fewmonths of the Board's operation. 6/Administration: selection of attorneyLegal aid officials refer applicants who pass the means test and otherwise qualifyfor assistance to attorneys in rotation. Attorneys are not obliged, however, toaccept legal aid cases.Financial eligibilityThe standard of financial eligibility is so low that only the very poor can obtainlegal aid.

Several critics have urged that, instead of applying the maximum annual earningsfigure as a cut-off point for any legal aid, it should be considered as the basefigure, below which legal aid is entirely free and above which it is provided on asliding scale. Others have urged that the maxinum annual earnings figure be atleast doubled. /The Board's response has been that the Act authorizes the granting of legal aid to"indigent" people only. 2/ However, since the Act does not define "indigent", it isclear that the Board has set its own definition of that term. The problem isundoubtedly political: if the Board were to set an appreciably higher standard of"indigence", it would provide "official" evidence to support the charges ofgovernment opponents that the overwhelming proportion of non-whites areindigent.The racially appropriate minumum annual earnings figure (-col. (2)), belowwhich no contribution towards costs is required, is doubled tor a married person._ I latal Daily News, 29 June 1971; Rand Daily Mail, 5 June 1971.Rand Daily IMail, 5 June 1971.7/ Ibid.8/ The Star, 25 January 1972; Rand Daily Mail, 5 June 1971. 9/ Rand DailyMail, 5 June 1971.

Legal Aid, T.S.- 103In addition, the amount below which no contribution is required is increased by afixed amount which varies for each race. In 1972 it was Rl44 for each additionaldependent of a white applicant, R96 for each dependlent of a Coloured or Asianapplicant, and P60 for each African dependent. But 1_ no case was legal aidgranted if the annual earnings of a married person w th dependents exceeded:RI,94 for a white;P780 for a Coloured or Asian; orE600 for an African. 10/The vast differential in the means test has been criticized. However, the Directorof the government system pointed out that even the "liberal"private Johannesburg Legal Aid Bureau applied a racially disparate means test.11/Qualification in criminal casesFrom a comparison of the provisions in the Guide relating to qualification forlegal aid in criminal matters with those relating to qualification in civil matters, itwould appear that applicstions for aid in criminal matters are to be officially,although not openly, discouraged. Thus paragraph 3, relating to criminal matters,is worded entirely in the neCative, indicating all theinstances in which aid shall not be given, while paragraph 4.1 co~mences with theGeneral proposition that "Subject to ... /certain specified exceptions/ legal aid isrendered in all civil matters".Paragraph 3.l.a opens with a requirenent which appears on its face tothrow the whole concept of legal aid in doubt: it requires the legal aid officer whoreceives an application for assistance in a criminal case to determine first whether

court procedures would adequately protect the applicant if he is unrepresented. Asthe Rand Dailyl 1sail corm7entator put that, "There is no justification for anylegal aid service other than 'court procedure' is not an adequate safeguard ofliberty". 12/An analysis of some of the cases (su.'m, arized in the digest) in which legal aid isnot to be granted according to paragraph 3.2 is instructive:An example of a matter (b) "so simple the accused can act for himself" is,Dar excellence, a pass offence. Such a case is, on its face, simple -- theaccused either did or did not have his or her pass when asked to produceit. However, it is clear that an African without sophisticated representation isunlikely to be able to profit by certain provisions of law thatmight keep him or her out of jail, such as the one permitting the accusedto show that he or she has a valid pass although it was out of his or herimmediate possession at the time of arrest.0/ Survey of Race Relations, 1971 (Institute of Race Relations, Joh.nnesburg,1972),p. 60.I_/ Rand Daily fhail, 5 June 1971.12/ Ibid.

Legal Aid, T.S.- lo4Refusal of legal aid for preparatory exaninations (case (d)) may inmany instances result in an accused unwittingly or unnecessarily dalaeinghis own defense before he ever cones to trial. The effect of such a mistake may beto disqualify him finally for any assistance under parktraph 5.2.1, which requiresan attorney to satisfy himself that an accused 3as a rima facie defense beforeengaging in litigation.Case (e), under which assistance shall be refused to an idle, dissoluteor dishonest person, allows the legal aid officer to punish the applicantadministratively, by denying him or her legal aid in relation to a criminalcharge of which he or she may be innocent because of a reputed life style ofwhich the officer disapproves. Obviously there will be a great temptation to refuseassistance under this clause to anyone believed to have undesirable politicalopinions, as well as to other unconventional persons.A number of years ago, when the present Prime Minister was Minister of Justice,he made it quite clear that except for pro deo defense of persons accused ofcapital crimes, he did not believe that persons accused of political offenses shouldreceive any defence at public expense. It remains to be seen whether legal aidwillbe extended to persons accused of non-capital offenses under, for example,the Suppression of Communism Act or the emergency regulations inOvamboland.Qualification in civil casesAs stated above, the Guide indicates that financially eligible applicants willreceive assistance in most civil suits.

The only basis on which a legal aid officer may turn down an applicant whomeets the means test is that he is idle, dissolute or dishonest. As in criminalmatters, this provision permits the legal aid officer to punish the applicant forconduct which he dislikes but which does not amount to a crime.The attorney to whom an applicant is referred determines whether there are anyother disqualifications. It may be assumed that his attitude will be moreaffected by considerations of law and less by political or financial considerationsthan the legal aid official's would be.Lawyers' feesSoon after the Act came into effect, the Rand Daily !Mail reported that the Boardwas negotiating (presumably with the appropriate bar societies) for a reducedschedule of attorneys' fees. 13/"-'Leal aid statistics: commentsAfter a short period of operation a number of comnents and criticisms were madeconcerning the Act and the Board.LV Ibid.

Legal Aid, T.S.- 105In the first eight months only 1,55T applicants sought aid from the Board. Thisaverages out to one-half person per legal aid office per week. It should becompared with the 1,072 applications made per month to the privateJohannesburg Legal Aid Bureau, which was staffed for half-days by volunteero.iA/This failure to apply for aid was attributed to, inter alla, the very low annualearnings rate set in the means tests, the close connection between the governmentand the Board, and the appointment as legal aid officers of governmentfunctionaries whom Africans may well have had reason to fear or hate. The Star,in a review of legal aid, suggested that in addition:The Board's activities appear to have failed so far because the people requiring itsservices do not realize it exists.A check at the Johannesburg Magistrates' Court confirms the Board's successfulanormity. Apart from a small note in the middle of a very big notice board -"Legal Aid 1057" -- there is no indication even of what it is.There are no notices in an African language. No one at the courts, includinga White and an African constable, seemed to know of it or had heard of it.Mrs. Kentridge La prominent lavyer7 said this situation appeared to existthroughout the country. 21A relatively detailed breakdown of applications grantedduring the first months of the Board's operation showed very clearly thepredominance of civil over criminal matters: In the first three months legal aidwas granted in 124 cases, of ,hich 95 were divorce proceedings brought by whites.16/ Of the 102 applications referred to attorneys during the first two months onlyone involved a criminal matter. _/The Rand Daily Mail figures were also broken down by race of the applicant. Ofthe 102 whose cases were referred to an attorney, 89 were white, ten wereColoured or Asian, and three were African.

14/ The Star, 25 January 1972; Survey 1971, p. 81. 15/ The Star, 25 January1972.:1K/ Survey 1971, pp. 80-81.17/ Rand Daily Mail, 5 June 1971; cf. slightly different figures printed in theNatal Daily News, 29 June 1971.

- 106 -n XI III SOUTH-WEST AFRICA EDUCATION ACT no. 86 of 1972(Never leGally in effect in Nlamibia)teneralThis Act vests in South African officials control of all education, up to theuniversity level, of Manas in the Territory. It covers both state-run and state-subsidized schools. Provision is .ade for the complete take-over of subsidizedmission schools by the Government whenever it so decides, and private schoolsoperating without subsidy are effectively abolished.The Act is in all significant respects identical to the legislation enacted at thesame session of Parliament covering education of Coloureds and ReehobothBasters in Namibia. 1/ It supersedes the provisions of the Education Ordinance 2/as regards i7amas.Control of Iama educationSection 2 provides that education of 1..amas in the Territory shall be controlled bythe Department of Coloured, Rehoboth and Nana Relations. Subsequent sectionsspell out how this is to be accomplished in the two types of permitted schools:state schools and state-aided schools.State schoolsSection 3 (1) empowers the Minister of Coloured, Rehoboth and Nama Relationsto establish ochools of all kinds -- primary, secondary, vocational, special, etc. for:amas in the Territory. He may also establish ancillary facilities such as hostels,teachers' quarters, clinics, etc. N;ew schools established under this authority, aswell as schools already operated by the territorial Administration, are called "stateschools" in the Act.State-aided schoolsSection 4(1) empowers the Minister to award private schools for Naamesgrantsin-aid and loans, for educational purposes or for student hostels. A schoolwhich receives such financial assistance or was receiving such assistance from theterritorial Administration on the effective date of the Act is called a "Stateaidedschool."Prohibition of other schoolsSection 6(1) prohibits the existence of any school for ,ams other than A stateschool or a state-aided school unless such school is registered by the Department.This prohibition is enforced by penalties levied m.ainst the manager of anunregistered school. ./1/ Coloured Persons in South-West Africa Education Act, No. 63 of 1972, andBasters of Rehoboth Education Act, N;o. 85 of 1972, respectively. 2/ OrdinanceVo. 27 of 1962.3/ Section 6 (2).

Nama Education- 107Tae-over of state-aiSed schoolsSection 5 empowers the Iinister, "after negotiation and agaeement with thegoverning body of a state-aided 9chool," to transfer the management and controlwr such school to his Department. Assets and obliCations of such schools also r.ssto the State. 4Control of opening end closing schoolsSection 8 empowers the !:inister to determine whether a school, state orstateaided, shall be established. Section 3 (3) empowers him to close ordisestablish any state school or facility used in connection with such a school.Control of courses, exp-inations, certificatesSection 27 empowers the Minister to institute and abolish courses of instruction,to have examinations conducted, to grant diplomas, degrees, or certificates, and toset fees for such courses.Medium of instructionSection 36, read with section 37 (1) (a) and (a), empowers the Minister todetermine which official language shall be used in state and state-aided schools,as well as the extent to which Nama shall be the medium of instruction.Control of admissionsSection 7, read with section 37 (1) (d), empowers the Minister to determine whoshall be admitted as students to both types of schools, the conditions foradmission, and who shall be discharged.Control of feesSection 31 (1) empowers the Minister to set school and boarding fees at both stateand state-aided schools. Subsection (2) empowers him to set different fees "inrespect of different classes of persons" or to exempt some persons or classes ofpersons in whole or in part.Control of financial assistanceSection 30 empowers the Minister to grant financial assistance to lNamas at stateor state-aided schools or at a university.Control of school personnel'CSection 10 provides that the M.inister shall control the aplpointment, promotion,transfer and discharge of all personnel in both state and state-aided schools. TheNinister also controls the salaries and other conditions of employment of allschool personnel. /4/ Section 32./ Section 13.

Nama Education- 108Conditions of emnlounentSections 15-25 deal with promotions, transfers, discharg4 etc., including eases ofchange-over from state-aided to state schools. The 4lefinition of

-misconduct in section 22, for which a teacher or other school-7eployee may bedischarged, 6/ includes, inter aliaublicly criticizing the administration of theDepartment (except at a meeting of a recognized staff association); doinganything "likely to encourage feelings of hostility among the different populationgroups of the territory"; and doing anything "prejudicial to the ad.inistration,discipline or efficiency" of the Department, of any institution of the State, or of astate-aided school. 7/Re.ulationsSection 37 (1) grants the Minister sweeping powers to make regulationsunder the Act. Contravention of a regulation may be punished by a fine of notmore than R50 ($57.50) or by imprisonment for not more than three months. 8/Particication of DarentsSection 34 empowers the Minister to establish school boards or committees toenable parents to participate in the management of both types of schools.Comulsory school attendanceSection 29 (1) empowers the Minister to make school attendance compulsory forall N7ma children in a specified area. Subsection (2) makes it an offense for anyparent or guardian in such an area to fail to assure that children =nder his careattend school.§/ See section 21 (1) (e).Paragraphs (e), (I), and (E), respectively.Section 37 ().

- 109 -Nana Education ActTechnical SupolementThis Act is similar in many respects to the Bantu Education Act, '!o. 47 of 1953,although it is less complex and less rirorous than thi older law.It implements apartheid theory by serregating the educatibn of Es-nas from theeducation of other children and by removing it from the aegis of educators andplacing it under the control of segregationist officials. Private schools for !.amas,which were established by various missions with government support, areeffectively nationalized; they renain private only insofar as they are associatedwith the founding mission, its traditions, and its me~nbers and graduates.With the enactment of the laws governing the education of Namas, Coloureds,and Basters in the Territory and the application of the Bantu Education Act to allother nonwhites, the Territory's 1962 Education Ordinance now applies to whitesonly.Definition of NamasSection 1 (xii) defines a " :ama," to whom the Act applies, as "a person who infact is or is generally accepted as a member of the Nama nation of the territory...."In South African law "in fact is" is interpreted as meaning "is by descent." "Isgenerally accepted as" is interpreted as applying to persons of uncertain ancestryor -- probably the more common case -- of mixed ancestry who live in the counityin question and are treated as if being "in fact" members of the

community. It is not clear why the Act does not define a Nama as anyone soclassified under the Identity Documents in South-West Africa Act. l/It should be noted that by removing Namas from the ambit of the Bantu EducationAct and subjecting them to legislation substantially identical to that governing theeducation of Coloureds and Basters in the Territory, this Act by implication treatsthe 1,amas as Coloureds. This is in line with other practice in the Territory. (SeeAppendix III to this Digest, "Assimilation of the Namas to Coloureds.")State schools and state-aided schoolsState schools for Natas are analogous to eovernment Bantu schools and stateaidedschools for Famas to state-aided Bantu schools. (See Digest, Bantu EducationAct.)South African policy favours government Bantu schools over state-aided Bantuschools. (See Digest, Bantu Education Act, "Control through financialassistance".) Section 5 of the N11ama Education Act, which provides for thefuture take-overof state-aided schools, expresses the same policy for Nmas. ?eans of bringing thisabout, without exerting overt pressure, include control of grants-in-aid, of fees, ofpersonnel, etc., and the use of school committees to demand full state control.(See below, appropriate headings.)17 No. 37 of 1970, q.v.

Nama Education, T.S.- 110Grants-in-aid to state-aided schoolsRegulation 0 2 (see below, "regulations") establishes mi um standardsfor a mission or other private school that seeks a grant-in-aid. Ohese include,*'Inter alia: an average attendance of at least ten pupils per trm; officialgrecognition of the church or mission responsible for maintenance of the school;proof of adequate accormmodation for the students; nomination of a schoolmanaCer =and recosnition of him or her by the Secretary for Coloured Affairs:and compliance with decisions of the Secretary as to enrolment of pupils,curriculum, and standards instruction. Grants-in-aid are withdrawn if theseconditions are not met. 2/The full significance of ReGulation 0 3 is not clear. However, it appears that,when construed with section 10 of the Act, which empowers the Minister tocontrol appointment, promotion, and discharge of all school personnel, theregulation can make a grant-in-aid to a state-aided school dependent upon theappointrent or disr.iissal of a particular teacher. This is the situation in state-aidedBantu schools in the Republic. (See Digest, Bantu Education Act, technicalsupplement, 'Control through financial assistance.")Prohibition of other schoolsThis prohibition parallels one in the Bantu Education Act (see section 9(1) and (5)) but is less rigorous. By construction, the Bantu Education Actprohibits instruction of more than one African except in an authorized school.(See Digest, "Prohibition of unregistered schools.") The 1.Fma Education Actprohibits instruction in an unregistered school of more than 14 Na~mas. 3/

Section 6 (1) in terns prohibits the existence of any private school for instructingmore than 14 'anas "unless such school is registered with the Departraent ... andcomplies with the prescribed requirements...." The- expressed hostility of thegovernment to unregulated education for anyone, white or nonwhite, would seemto preclude actually granting registration to a wholly private school for Namas --assuning that a mission or other group could afford to run one without anyfinancial assistance from the government.Control of coursesRegulation C 21 limits the books used for instruction or reference to thoseapproved by the Secretary for Coloured Affairs. Sub-regulation C 21 (c)empowers the Secretary to "declare any library book in the possession of a schoolor acquired by a school to be unsuitable or undesirable and such books shall be.handed over to the Secretary."-ReliLousinstructionThe only reference in the Act to religious instruction is found in section 36, whichdeals with the medium of instruction. Religious instruction is covered under"medium of instruction" in the regulations also.?/ Regulation 0 2 (i).3_/ Section 6 (1).

Nama Education, T.S.- i11Regulation F 3 requires state schools to be opened with Lord's Prayer or anotherprayer and a reading from the Bible. Regulation F 5 requires at least 1 1/2 hoursof religious instruction per week (exclusivV of devotions and Bible study) in allstandards up to the sixth and at lea4 70 minutes in the higher standards.Regulation F 6 prohibits any "specifid doctrine or dogma which is distinctive ofany particular religious denominatiori-or sect ...."Regulation F 7 (a) provides that a child shall be exempt from religious instructionand devotions at his or her parents' request and shall not be penalized therefor.Regulation F 7 (b) provides that a teacher need not give or attend any religiousinstruction to which he or she has any conscientious objection if he or she hasobtained an exemption from the Secretary of the Department.Regulation F 10 allows the manager or controlling body of a state-aided school todetermine the nature of religious instruction to be given; but the minimum amountof religious instruction required for state schools under regulation F 5 must begiven also in state-aided schools. The regulation alsopermits a child to be exempted on his or her parents' request.Disputes between the authorities in either type of school and a parent concerningreligious instruction are to be decided by the Secretary of the Department, withoutappeal. 4Medium of instructionSection 36 and the regulations issued under it do not indicate to what extent Nanashall be used in teaching. According to a survey made for the InternationalUniversity Exchange Fund in 1974, however, instruction of Africans in Namibiais carried on in the mother tongue for the first four years and then shifts to anofficial language. 5/

When classes are not conducted in Nama, regulation F 1 (1) requires that childrenbe taught in the official language in which they are more proficient; parents maychoose between Afrikaans and English only if their children are equally proficientin the two languages.Under this provision it appears likely that most Nama children who continuebeyond the first four years will be taught in Afrikaans: their proficiency, if any, islikely to be gained, directly or indirectly (through parents, community, or jobs)from the white settlers, most of whom speak Afrikaans (or German); and thewhite "native affairs" officers who determine or oversee the determination ofproficiency are nearly all Afrikaners, many of whom treat English as the languageof subversion. Although regulation F 1 (2) provides for schools in which bothofficial languages are required as media of instruction, regulation F 1 (3)empowers the Secretary for Coloured Affairs, "in respect3_/ Regulation F 11./ Helen Lewis-Jones, "Report on the Survey of the Educational Situation andNeeds of Namibians in Independent African Countries" (mimeo.), IUEF, Geneva,P. 7.

Nama Education, T.S.- 112of the school, C--toJ decide that only pupils whose medium of instruction is to beAfrikaans or only pupils whose medium of instruction is to be Englishshall be enrolled in such school ...." The IUEF survey in fact indicates that nearlyall instruction of Africans is in their mother topgue or Afrikaans. 6/Regulation F 2 provides that Afrikaans, English and Rama shall each betaught as a subject of instruction in all schools. It goes on to require that alanguage not used as the medium of instruction shall, as far as possible, be taughtin that language and not in the medium used to teach other subjects.The IUEF report indicates that these provisions as to medium of instruction resultin most Namibians, who are otherwise qualified, being unable to pursuestudies in anglophone countries vithout remedial English studies.Control of admissionsRegulation C 2 provides that a Nama child of the appropriate age and sex shall beadmitted to a Nama school if the necessary classroom accommodation is availableand if he (or she) has attained the necessary degree of proficiency for admission.A decision not to admit goes to the school board or committee or manager, if any;if not, to the regional representative of the Department. A parent or guardian mayappeal an adverse decision to the Secretary, / but there is no provision forappealing the Secretary's decision.Regulation C 24 permits, but circumscribes, the infliction of corporalpunishment in schools and hostels. Inflicting such punishment on a girl or inpublic is forbidden.Regulation C 25 (1) permits the suspension of a pupil when his conduct "is suchthat in the opinion of the principal it would be prejudicial to the interests of theschool to allow such pupil to continue attending school ...." Sub-regulations (3)and (4) provide that results of an investigation into the matter by the school board,

committee or manager or by the regional representative of the Department shallbe sent to the Secretary for action thereon.Control of feesRegulation C 27 provides that no fees shall be charged for instruction up to the10th Standard, except for special, part-time, and continuation classes.If South African practice is followed, however, parents are likely to be put underpressure, perhaps through the school committees, to "contribute" to suchncessities as adding extra rooms to the schoolhouse, buying desks, or supplyingmaterials such as slates and chalk. Where a dearth of accommodationsseverely limits the number of children that can be admitted, the temptation ofauthorities to demand payment for admission may be overwhelking.Vf Regulation C 4.

Nama Education, T.S.- 113Personnel, conditions of employmentRegulations B 1-72, by far the largest number of regulations relatingto one subject, cover "Appointment and conditions of serviceof teachers."Section 15 (1) (d) of the Act provides that women may qfbalify as teachersonly if unmarried, although subsection (2) (b) empowers the Minister to makeexceptions. The regulations provide for the exceptions, including suchmatters as "vacation leave for accouchement" 8/; they suggest that there maybe a fair number of married women teachers despite official discriminationagainst them.Section 26 and regulation B 68 (1) - (6) deal with staff associations. Anassociation may be recognized only if at least 50% of the staff belongs. 9/ Noteacher may be compelled to join a staff association i0/, and no dues maybe collected or increased unless the Minister approves. L/ Staff associationrecords are subject to official inspection and verification. 12/RegulationsOn 21 December 1973 the Department of Coloured, Rehoboth and NamaRelations issued "Regulations Framed under the Nasa in South-West AfricaEducation Act, 1972." These are found in Government Notice No. R. 2463 of1973, printed in Government Gazette No. 4i14.Participation of parentsRegulation D 1 (1) and (2) provides that a school committee of a state schoollocated in Namaland shall consist of 5 or 7 members, including one memberappointed by the tribal authority (as established under the Native Nations Act,q.v.) and the rest elected by parents or guardians of pupils in the school. If thestate school is located outside Namaland, the members are chosen by the parentsat a special meeting for that purpose. iJA school committee for a state-aided school in Namaland consists of onemember appointed by the tribal authority, two by the church authority ormissionary body which maintains the school (they shall be chairman and vice-chairman), and two elected by the parents of the pupils. i/. Outside Namaland two

persons shall be appointed by the church authority or mission board and threeelected by the parents.Regulation D 9 lists the powers and functions of a school committee, inter alia: torecommend appointments to the staff; to inquire into complaints; to recommendinquiries by the Secretary in respect of staff; to advise on school welfare; tosubmit parents' representations to the regional representative "any8/ Regulation 45.9/ Section 26; regulation B 68 (1), (2). 10/ Regulation B 68 (3).i/ Regulation B 68 (4).12/ Regulation B 68 (5).13/ Regulation D 1 (1), (2).DI_ Regulation D 1 (3), (4).151 Ibid.

Nama Education, T.S.- limatter which in the opinion of the committee concerns the welfare or efficiencyof its school"; and to exercise general supervision over the school.It is not unlikely that the government views school committees as a device fordraining off much of the frustration and anger concerning Nama education whichmight otherwise be directed against the Department. In relation to stateaidedschools, they may also be used to express a "popular" or "spontaneous" publicdemand for state schools instead. Under Regulation 12 (1) (b) the Minister haspower to dissolve a committee that "has failed to carry out its duties satisfactorilyor has acted ... not in the best interests of the school . "Compulsory school attendanceGovernment Notice No. 130 of 1975 16/ creates a unique form of compulsoryschool attendance for Nama children in the Territory. The notice requires thatevery Nama child who is enrolled in any school in the Territory at the beginningof the school year shall continue in regular attendance until the end of the year.16 Government Gazette No. 562, 17 January 1975.

- 115 -NAMALAND CONSOLIDATION AND ADMINISTRATION ACT No. 79 of1972(Never legally in effect in Namibia)GVeneralThis Act establishes the Nama "homeland," to implement the Odendaal Plan.Boundaries of the "homeland"Sections 2 and 4 and the schedules attached thereto create the "homeland" out ofparts of former Nama reserves and other land added by administrative action.Section 2 (1) provides that Nazaland shall consist of the areas in the districts ofBethanie, Gibeon and Keetmanshoop which are occupied mainly by Namas andlisted in Schedule 1. Section 4 excludes from the "homeland" the former Bondels,Neuhof, and Warmbad Nama reserves.Section 2 (2) empowers the State President to amend the boundaries of

the "homeland," as established in the first subsection, by including other parcelsof land in the three districts which have been reserved by the territorialAdministrator under the. Reservation of State Land for Natives Ordinance.1Minister of Coloured, Rehoboth and Nama Relations to hold land in trustThe South-West Africa Bantu Affairs Administration Act of 1954 2/ provided thatnative reserves in Namibia should be vested in the South Africa Bantu Trust.Section 3 of the Namaland Act transfers the land constituting the Nama"homeland" (plus any land added under section 2 (2)) from the Trust to theMinister of Coloured, Rehoboth and Nama Relations. The Minister is required tohold the land "in trust for the Nama."Transfer of funds to the MinisterSection 5 authorizes the transfer to the Minister of funds currently vested in theSouth Africa Bantu Trust which are intended mainly for the benefit of the Namas.The Minister is made responsible for disposing of the funds in accordance withtheir terms.Prospecting and mining in NamalandSection 7 (1) provides that the Minister shall be deemed the owner of all land inNamaland insofar as prospecting and mining are concerned. Royalty payments,fees, etc. for any activity related to prospecting or mining shall be paid to theMinister. He shall appropriate such money "as he may think fit for the promotionof the welfare of the inhabitants of Namaland and the general development ofNamaland."I/ Ordinance No. 35 of 1967.?/ Act No. 56 of 1954, sections 4 (1) and 5.

Namaland Consolidation- 116Subsection (2) empowers the Minister to make exceptions to the general policytherein established that only Namas may prospect, peg a claim, or mine inNamaland.His permission is also needed to transfer, let, or dispose of a claim or mining area.MiscellaneousSection 8 (1) indicates how certain other laws shall be read when they apply toNamaland or Namas. In particular, it provides that references to specifiedterritorial and South African officials found in certain legislation purportedlymade applicable to Namaland shall be deemed references to specified officials ofthe Department of Coloured, Rehoboth and Nama Relations.

- 117 -Najualand Consolidation and Administration ActTechnical SupplementThe Nama "homeland" established by this Act follows the oundaries proposed inthe odendaal Plan. It includes all or most of the former.Berseba, Tses, andSoromas reserves and a number of formerly white farms around them, particularlyto the north in the Gibeon district and to the southwest in Bethanie. The"homeland" is concentrated in one area. The smaller non-contiguous reserves

are abolished, their status as part of the South Africa Trust lands being rescindedby section 4.The Reservation of State Land for Natives Ordinance was implemented by atleast one proclamation 1_/ setting aside some state land for Africans. Includedwas land in the districts of Bethanie, Gibeon and Keetmanshoop and in GibeonTown ship.Minister of Coloured, Rehoboth and Nama Relations to hold land in trustAlthough it would seem that the Namas are indigenous people and thereforeshould be classified as "natives" within the south African apartheid system, thislaw, like the Identity Documents in South-West Africa Act (q.v.) and others,suggests that they are effectively classified as Coloured. The classification isapparently based on arbitrary South African pseudo-anthropological distinctionsbetween "Bantu" and other Africans, as part of the wider scheme to fragment anddivide Africans and blacks generally.Prospecting and mining in NamalandSection 7 overrides any conflicting provisions in the Mines, Works, and MineralsOrdinance, No. 20 of 1968, as amended (q.v.).Section 7 (1), when spelled out in detail, provides that for purposesrelating to prospecting and mining, all land in Namaland is deemed to be private.land,and the Minister of Coloured, Rehoboth and Nama Relations is deemed to bethe owner. "Moneys payable to the owner" (i.e., rents, royalties, fees, etc.) are,therefore payable to him. Under section 7 the Nama have no control over thedisposition of such money, and do not even have to be consulted as to its use.Section 7 (2) (a) by its terms forbids outsiders to prospect or mine in Namaland.However, the South African Minister of Mines is empowered to grant exceptionsto this prohibition, and there are no criteria in the subsection or elsewhere in theAct as to the circumstances under which he may or should-grant such exceptions. The Minister of Mines is also empowered to grantuxceptions to section 7 (2) (b), which prohibits the owner of a claim or mining.area in Namaland from transferring, letting, or otherwise disposing of it.In view of the technical expertise, equipment and capital needed to prospect forminerals and to exploit them, it seems likely that the exemptions provided for inthis section will predominate over the basic prohibition on outside exploitation ifthere are valuable or extensive mineral finds. The penalties for contravention ofthe section set forth in subsection (3) may, however, prevent whites fromexploiting minerals in Namaland without official acquiescence.I/ No. 24 of 1968, Official Gazette No. 2875, 16 April 1968.

- 118 -NEWSPAPER AND IMPRINT REGISTRATION ACTNo. 63 of 1971(Never legally in effect in Namibia)GeneralThis Act requires every publisher of a newspaper in the Republic or the Territoryto register it with the Minister of the Interior and every printer to print his nameand address on everything he prints.

The Act amends, repeals and replaces the Newspaper and Imprint Act of 1934. IItshould be read with the Publications Act _/ and the provisions relating topublications in the Suppression of Communism Act 3/ and the RiotousAssemblies and Criminal Law Amendment Ordinance.Registration of newspapersSection 2 prohibits printing or publishing any newspaper in the Republic or theTerritory unless it has been registered.Section 3 requires every existing or prospective newspaper publisher to file anapplication form, containing the required particulars and accompanied by aregistration fee, with the Secretary of the Interior. The Minister shall register thepaper, and issue a certificate of registration provided its name is not likely to bemistaken for another (registered) paper. 3/The publisher is required to notify the Secretary of the Interior of changes in anyparticulars in his registration form as they occur.Information to be printed in every newspaperSection 7 requires the printer of a newspaper to ensure that there is printed on thefront, back, or penultimate page of every newspaper he prints:- the full and correct address at which the paper is published; and- the full and correct names and addresses of the proprietor, printer andpublisher.Editor must be resident of the Republic or TerritorySection 8 prohibits printing and publishing a newspaper in the Republic or theTerritory unless the chief editor is a resident thereof./ No. 14 of 1934.V/ No. 42 of 197./ No. 44 of 1950.No. 9 of 1930./ Section 4 (1).Section 5.

Newspaper Registration- 119printer's name and adress to be on all printed mattersSection 9 requires that a printer shall print his full and correct name and addresson everything he prints unless an exemption is granted by-the Minister.0fen cE5Section 11 makes it an offence, punishable by a fine of up to R500 ($5T5),imprisonment for not more than six months, or both, to contravene any provisionof the Act or to make any false statement in connection with it. AdministrationSection 12 empowers the Minister to delegate to officials of his Department anypowers conferred on him by the Act, and section 13 empowers him to makeregulations for the implementation of the Act. Application to the TerritorySection 14 (L) makes the Act and amendments applicable to the Territory,including tLe Eastern Caprivi Zipfel.

- 120 -

Newspaper and Imprint Registration ActTechnical supplementRegistration of newspapers requiredThe definition of "newspaper" In section 1 (ii) excludes any publicationnot intended for public sale or public dissemination", but in case of doubt,jlection 11 (2) creates a presumption that public sale or dissemination is intended.It would appear therefore that the stringent controls in the Act may be applied to awide variety of publications.Section 4 (2) provides that the Secretary of the Interior may furnish any personwith the particulars of a registration application if the inquirer pays a stipulatedfee for the information.A certificate of registration or a certified copy thereof shall, in the absence ofproof of fraud or error, be conclusive evidence of the fact of registration andprima facie evidence of any fact stated in the certificate or the copy. l/The publisher of a newspaper must send the Secretary a free copy ofthe first issue of the paper printed after registration and copies of any other issueswhich the Secretary requests. _/Printer's name and addressSection 10 provides that a printer may register with the Secretary ofthe Interior an abbreviation of his name and address and thereafter suchabbreviation may be printed instead of his full name and address.Application to the TerritorySubsection (2) of section 14 delayed the application of section 2 of the Act to theTerritory until three months after the Act became effective in the Republic.1/ Section 4 (3).?/ Section 6.

- 121 -OFFICIAL SECRETS ACTNo. 16 of 1956, as amendedThis Act was originally intended to protect South AfricaL against foreignespionage, but as amended in 1969 1/ it now also protects the government againstembarrassing revelations concerning the operations of its Bureau for StateSecurity (BOSS). The relevant provision should be read in conjunction with theso-called "BOSS Act", 2/ which empowers a Cabinet Minister to prevent anycourt from hearing testimony which he believes prejudicial to national security.The Act is characterized by undefined terms, by provisions shifting the burden ofproof onto persons accused of contravening the Act, and by irrebuttablepresumptions which undercut the defence of such persons. Rebuttable andirrebuttable presumptions may be piled one on the other, to lead to convictionsbased on evidence otherwise insufficient for conviction.DefinitionsSection 1 contains several important definitions (although many vital terms areleft undefined). In particular, a "foreign agent" is defined as any person"reasonably suspected" i) of being employed by any state to commit, anywhere in

the world, an act prejudicial to South African safety or interests or (ii) of havingcommitted, or attempted to commit such an act anywhere.EspionageSection 2 defines espionage as being near a "prohibited place" or making,obtaining, or communicating plans, sketches, models, documents, or information"likely to be directly or indirectly useful to an enemy" if such act is committed"for any purpose prejudicial to the safety or interests" of the Republic.There is no definition, either in section 2 or elsewhere in the Act, ofmany of the vital terms, including "interests," "useful," or "enemy." However,several presumptions, discussed below, provide indirect definitions of some ofthese terms.Presumption: communication with a "foreign agent"Section 7 provides that in a trial for espionage, the burden shall be onthe accused to show that he did not (try to) obtain information useful to an enemyif he visited or sent communications to the "address of a foreign agent",associated with a foreign agent, or had, supplied to or obtained information from aforeign agent.Presumption: information useful to an enemySection 7A 3/ eliminates any need to identify South African "enemies" inprosecutions for espionage. It provides that, if the prosecution shows that theaccused is a foreign agent or is "reasonably suspected" of being employed/ General Law Amendment Act, No. 101 of 1969, sections 10-12.2/ d., section 29, as amended (q.v.).3/ Added by Act No. 101 of 1969, section 11.

Official Secrets- 122by "any foreign or international body or institution" or is in the Republic illegally,the accused then has the burden of proving that the information which he obtainedor disclosed is not likely to be useful to an enemy.$reaches of trust" Section 3 (1) penalizes breaches of trust resulting in the disclosure of ilans,codes, passwords, and other types of confidential information.Publication or communication of prohibited informationSection 3 (2) (a) and (b) (ii) / penalizes publication or communication, in amanner or for a purpose prejudicial to the safety or interests of the Republic, ofinformation relating to: munitions and weapons; war; the police; any subjectunder investigation by the Bureau for State Security (BOSS); or "the relationshipsubsisting between any person and the said Bureau".Under a literal reading of section 3 (2) it may therefore be unlawful for a detaineeto issue a complaint in a civil action for damages for mistreatment while underinterrogation by Bureau agents. And anyone, particularly a lawyer or journalist,may contravene the Act unwittingly by revealing information about a matterwhich, unknown to him, the Bureau is investigating. 5/Receiving prohibited informationSection 3 (3) makes it unlawful to receive a code, plan, etc., knowing or

having reason to believe that it was communicated illegally, unless the recipientproves that "the communication thereof to him was against his wishesOther prohibited actsSection 4 (1) prohibits impersonation of an officer, falsification of statements,forging documents, etc., to aid anyone in gaining admission to a prohibited placeor for any other prejudicial purpose.Section 4 (2) makes it unlawful to retain official documents without authorization,to allow an unauthorized person access to them, or to manufacture or sell anyofficial die, seal, or stamp.Obstructing guardsSection 5 makes it unlawful to obstruct guards at prohibited places.*oncealing criminalsSection 6 prohibits harbouring or concealing or failing to inform policeconcerning persons known or reasonably believed to have committid or to beabout to commit a crime under the Act; also to fail to inform the policeconcerning any foreign agent or any person who communicates with him./ Subsection (2) substituted by Act No. 101 of 1969, section 10. 51 House ofAssembly Debates, 11 June 1969, cols. 7798-99, 7812-13.

official Secrets- 123Presumption: purpose prejudicial to state safety or interestsSection 8 (1) drastically reverses the normal burden of proof in criminalprosecutions by providing that if "from the circumstances of the case or theconduct of the accused, it appears that his purpose was ... pinejudicial to the safetyor interests" of the Republic, he has to prove "the contrary".Subsection (2) / is limited to prosecutions for making, obtaining, communicating,etc., "anything" for a prejudicial purpose. If the prosecution shows that theaccused (i) was not lawfully authorized to make, obtain, or communicate the thingor (ii) is a foreign agent or is "reasonably suspected of being ... directly orindirectly employed by any foreign or international body or institution" or (iii) isillegally in the Republic, the accused then has to prove that his purpose was notprejudicial to state safety or interests.Place of trialSection 9 provides in effect that a person accused of contrevenirg the Act may betried wherever the State chooses to prosecute him.Approval required for prosecutionSection 10 requires written approval of the Attorney-General or of the Solicitor-General to institute any proceeding under the Act.Closed trialsSection 12 empowers a trial court to direct that any prosecution under the Act beclosed to the public if it finds that a closed trial is "in the interests of the safety" ofthe Republic.Extraterritorial application of the ActSection 13 explicitly provides that acts committed outside the Republic by SouthAfrican citizens or domiliaries are covered by the Act.

Application to the TerritorySection 15 provides that the Act applies to the Territory, but does notmake it specifically applicable to the Eastern Caprivi Zipfel. Section 1 defines theRepublic to include "the Territory" without defining the Territory to include theEastern Caprivi Zipfel.§/ Subsection (2) substituted by Act No. 101 of 1969, section 12.

- 124 -Official Secrets ActTechnical supplementGeneralThis legislation, as it was originally enacted, does not appear to have beendesigned to repress political dissidence but rather to prevent the usual kinds ofespionage, whether committed by agents of other governments or by SouthAfricans whom they might corrupt or inveigle into assisting them. The concernwas clearly focused on military installations and related facilities, weaponry,codes, passwords, police investigations, etc. (Separate legislation protects nuclearand related scientific installations, equipment and secrets, while the Defence Act,I/ has overlapping provisions protecting military secrets, equipment, plans etc.)The lack of definitions in the original legislation and the presumptions which itsubstitutes for factual evidence appear to be readily explicable by the difficultiesinherent in coping with espionage.However, the changes wrought by section 10 of the 1969 General LawAmendment Act (which substituted a new subsection 3 (2) in the Official SecretsAct) indicate a shift in emphasis from simple protection of national security, asthat term is generally understood, to preventing disclosures embarrassing to thegovernment, particularly concerning the activities of its political police (formerlythe "Special Branch", now subsumed under the Bureau for State Security, orBOSS).DefinitionsThe definition of "foreign agent" in section 1 points up one of the manytroublesome aspects of the Act: the reliance on "reasonable suspicion" as asubstitute for factual evidence in circumstances which may lead to unfairconsequences and virtually disprovable conclusions. (For other instances of thesubstitution of reasonable suspicion for facts, see sections 7 (2) (b) and 8 (2).) Itshould be noted that the definition is concerned exclusively with persons actingon behalf of other states: compare sections 7 (2) (b) and 8 (2), which virtuallyequate with the definition in section 1 being "employed by any foreign orinternational body or institution". (Emphasis added.)The Act, of course, does not make being a foreign agent, as such, a crime,although it undoubtedly constitutes grounds for deportation of an ordinary alien orfor declaring a diplomat persons non grata. (The government normally deportsaliens without giving reasons.) However, section 7 (2) (b) establishes certainconsequences which follow, by the operation of presumptions, from an originalholding that a person is a foreign agent in terms of the definition.

"Munitions of war" are defined as including "any ... device ... capable of beingadapted for ... Luse in war or in the defence of South Africa-/".2_/ Act No. 44 of 1957.

Official Secrets, T.S.- 125It would appear that this definition could reasonably be construed by a court tocover items normally thought of as "civilian", such as cameras, calculatingmachines, field glasses, etc.EspionageSection 2 (a), spellLd out in full, makes it unlawful for anyone toapproach, inspect, pass over, be in the neighbourhood of, or entef any prohibitedplace for a purpose prejudicial to the state.It should be noted that the gravamen of the offense under this paragraph is merelybeing in or near certain places with a certain intent. Indeed, none of the offencescreated by the Act requires a showing that the Republic was in fact prejudiced bythe actions of the accused; it is sufficient in all cases to show (by invoking anypresumptions which are applicable) that he has committed specified acts for apurpose prejudicial to South Africa."Prohibited places", near which it is unlawful to be under section 2 (a), are verybroadly defined in section 1: In addition to the more or less obvious places -- e.g.,military installations, arsenals, or facilities for storing military equipment,supplies, plans, strategic materials, etc. -- the definition includes:... any ... factory, dockyard, camp, ship, vessel or aircraft;any telegraph, telephone, wireless or signal station or office; and... any place declared by the State President by proclamation in the Gazetteas prohibited place for the purposes of the Act(Emphasis added.) 2/If section 2 (a) and this definition are taken literally, and if they'are read withsection 87(1), which shifts the burden of proof to the accused if "thecircumstances of the case" warrant, a person who sought work at a factory or senta telegram in a telegraph office or flew South African Airways might have toprove his innocence against a prima facie case of espionage.Section 2 (b) is concerned with makin notes, plans, sketches, models, etc., likelyto be useful to an enemy, and section 2 (L) with obtaining, reproducing, orcommunicating any such things or documents or information which are likely tobe useful to an enemy.The penalty for contravening section 2 is imprisonment for not more than 15years. 'This is the heaviest penalty imposed by the Act, the next being up to sevenyears' imprisonment under section 3 (2). Penalties under the other sections includea fine as an alternative to, or in addition to, imprisonment.?/ Last provision amended by Act No. 65 of 1965, section 1.

Official Secrets, T.S.- 126Presumption: communication with a foreign agent

Section T (1) is stated to apply to all prosectuions un~er section 2, but it appearsthat it would normally be relevant to paragrap1s (b) and (c) only. It provides thatif the prosecution establishes that II~be accused communicated with a foreignagent anywhere in the world, then he is presumed to have obtained, or attemptedto obtain, information likely to be directly or indirectly useful to an enemy for apurpose prejudicial to South African safety or interests. The accused then has theburden of proving that thisis not true.In order to prove that the accused communicated with a foreign agent, section 7(2) (a) provides that the prosecution merely has to establish (i) that he has visitedthe address of, or associated with, any foreign agent or (ii) that he has anyinformation about a foreign agent or has supplied such information to anyone orobtained it from anyone. The accused then has to prove that he did notcommunicate with a foreign agent.Furthermore, if any address anywhere is "reasonably suspected" of beingconnected in any way with a foreign agent (an address where he resides, to whichhe resorts to send or receive communications, or where he carries onany business), it is "deemed" to be "the address of a foreign agent". Then anyperson who addresses communications to such an address is "deemed" to havebeen in communication with a foreign agent. /The word "deemed", which occurE twice in paragraph 7 (2) (b), is heldin South Africa to constitute a mandatory rule of construction for the court, i.e., anirrebuttable presumption.Presumption: information useful to an enemySection 7A (as well as section 8 (2)) in effect equates being employed (which maybe established by a "reasonable suspicion") by any "foreign or international bodyor institution" with being a "foreign agent" insofar as prosecutions for espionageare concerned. Taken literally, the presumption created by the section wouldapply to any United Nations staff member, Red Cross official, or employee of aforeign corporation.The presumption created by this section applies, of course, only if the prosecutionshows that the accused has made, obtained, collected, recorded, published orcommunicated a sketch, model, plan, document etc.It appears that section TA was added to the Act in order to ease theburden of the prosecution in cases under section 2 (b) and (c). Nevertheless, itmay b asked whether the phrasing of section 2, "likely to be directly or indirectlyuseful to an enemy" (emphasis added), is not so broad as to be easily provedwithout any presumption. It is hard to imagine any document or informationrelating not merely to science, engineering or military affairs, but also to political,economic or social conditions in the Republic, which could not be shown to be atleast indirectly useful to some enemy.3/ Section 7 (2) (b).

Official Secrets, T.S.- 127Breaches of trust

Offences under this subsection would normally be committed by SouthAfrican citizens. This may be the reason why the penalties are markedly lesssevere than for espionage@Publication or communication of prohibited informationSection 3 (2) was amended in 1969 by adding: (i) "security matters" to the list ofthings as to which it is unlawful for anyone to have information "in his possessionor under his control" or to publish or disclose any information; and (ii) thedefinition of "security matters", which includes "any matter dealt with by theBureau for State Security ... or relating to the relationship subsisting between anyperson and the said Bureau".It should be noted that the "BOSS Act" V was interpreted in Parliament to permita Cabinet Minister to prevent a court from hearing testimony concerning the samematters that section 3 (2) of this Act would apparently penalize a person fordisclosing. /Presumption: purpose prejudicial to state safety or interestsSection 8 (1) places the burden of proving a non-prejudicial purposeon the accused if it merely "appears" that his purpose was prejudicial to statesafety or interests. "Interests" of the State are not defined, but it isobvious that something other, and far broader, than state security is intended. Inthe discussion of the 1969 version of the "BOSS Act", where the term "intrests" ofthe state is also used, an Opposition Member of Parliament stated that,"Everything is in the interests of the State in the end ...." /Subsection (2) follows the same formula as section 7A (presumption: informationuseful to an enemy), which puts the burden of proof on the accused if he isreasonably suspected of being employed 'y any "foreign or international body orinstitution".JurisdictionSection 9 provides that a prosecution under the Act may be brought at the placewhere the offence was allegedly committed or "at any place where the accusedhappens to be". Since it is likely that the offender will have been detained (underthe Terrorism Act or other legislation) before he is brought to trial, and since suchdetention may be wherever the police please, the accused will "happen to be"wherever the police have held him or transferred him before he is released fortrial._/ I.e., section 29 of Act 101 of 1969, as substituted by Act No. 102 of 1972,section 25. Section 10 of the 1969 Act substituted a new section 3 (2)in the Official Secrets Act.V/ House of Assembly Debates (Hansard), 11 June 1969, cols. 7800-3, 7807-11,7814,7817-9, 7824-5; 12 June 1969, cols. 7861-4; 17 June 1969, cols. 8223-4. §/Debates, 11 June 1969, col. 7801.

Official Secrets, T.S.- 128Approval required for prosecution

As under the Terrorism Act, the requirement that a senior official give hisapproval for prosecution may serve to prevent the trial of an innocent personcaught in a web of presumptions.Although it is clearly desirable to prevent the prosecution of innocent persons,this particular method of preventing prosecutions leaves much to be desired. Itplaces the potential defendant at the mercy of an official who may act out ofpersonal caprice or under political pressure without being required to accountpublicly for his decision whether to grant or refuse his approval.The government may use the threat of prosecution under the Act as ameans of discouraging lawful action which may embarrass South Africanfundtionaries or to compel persons to become informers.Extraterritorial application of the ActIn general, international law disapproves of extraterritorial legislation althoughmost states have some laws which govern certain activities of their citizensabroad. This law goes further, by prescribing the conduct of South Africandomiciliaries while outside the Republic.Application to the TerritoryIt appears that the Act does not apply to the Eastern Caprivi Zipfel insofar assection 15 or the definitions of section 1 govern its application. However, sinceNamibians of the Zipfel are South African citiz-ns according to the South AfricanCitizenship Act, 7/ it would appear that the Act may nevertheless apply to themby virtue of section 13./ Act No. 44 of 1949 (q.v.).

- 129 -POLICE (SOUTH-WEST AFRICA) ACTNo. 19 of 1939, as amendedSection 1 of this Act incorporated the South-West Africa Police into the SouthAfrican Police as of 1 June 1939. Section 2 provides that the latter shall exerciseall the powers and functions of the forier as from that date.Section. 3 I/ provides that the Territory shall pay the South Africangovernment £200,000 per year for the services of the South African Police in theTerritory.Technical supplementThe South-West Africa Police were established by the Administration of JusticeProclamation, No. 21 of 1919, and the Police Proclamation, No. 56 of 1921.The date of the incorporation of the South-West Africa Police in the Union Policewas established by Union Proclamation No. 100 of 1939, issued under authorityof section 1 of the Act.Section 22 of the South-West Africa Affairs Act of 1969 (q.v.) establishes a newfiscal relationship between the Republic and the Territory, which reflects theextensive takeover of territorial administrative functions by the Republic. Theformula which determines the subsidies by South Africa to the Territory takes intoaccount the amount owed by the Territory for, inter alia, servicesperformed by the South African Police. 2/ It would appear that the payment,therefore, has become a mere bookkeeping entry under the 1969 Act.

Amended by Act No. 81 of 1957, section 11. See Act No. 25 of 1969, section 22(2) (b), definition of "c.

- 130 -PRISONS ACTNo. 8 of 1959, as amended(Not legally in effect in Namibia)SeneralThis Act covers prisons generally: establishment, administration andfunctions of the Prisons Department; establishment and administration of prisons;duties of staff relating to reception of prisoners and carrying out of sentences;penalties for specific offences and rewards for recapture of escaped prisoners;trial of offences under the Act; prison boards and release of prisoners; removal,training and treatment of prisoners; civil debtors and other classes of prisonersand general provisions.This digest is limited to a few provisions of special interest.Separation of prisoners by colourSection 23 (1) (b) provides for separate detention of white and non-whiteprisoners ".n such a manner as to prevent white and non-white prisoners frombeing within view of each other ...." Paragraph (c) adds that, "whereverpracticable, non-white prisoners of different races shall be separated".Transfer of prisoners to the TerritorySection 73 (5) 1/ provides that a convicted person serving a sentence ofimprisonment may be transferred to a prison anywhere in the Territory tocomplete or serve a portion of his term there. In such a case, the imprisonedperson shall be treated as if he were undergoing a sentence imposed by aterritorial court having jurisdiction over the matter.Hiring out prisoners- Section 75 (1) provides that the Commissioner of Prisons "may contract with ...Lany public authority or!/ any person or body of persons for the employment ofprisoners who are under sentence or imprisonment, upon such terms andconditions as may be agreed between such parties". The subsection makes itsprovisions "subject to the employment of prisoners upon public works as far aspossible ..."Application of the Act to the TerritorySection 96 provides that the State President may, by proclamation in theGazette apply the Act to the Territory. It was applied to South West Africa andthe Eastern Caprivi Zipfel by Proclamation 271 of 1959; but subsequentlyProclamation No. R. 130 of 1969 _/ repealed the earlier proclamation andreapplied the Act as amended, with minor modifications./ Added by Act No. 101 of 1969, section 16. ?J South African GovernmentGazette No. 2406, 23 May 1969.

- 131 -PROVINCIAL AND THE TERRITORY SERVICE PENSIONS ACT No. I4 of1969

(Never legally in effect in Namibia)GeneralThis Act provides for the merging of the various provincial and territorial pensionfunds for public employees into a new Provincial and the Territory ServicePension Fund established by section 2 of the Act.Territorial funds affectedSection 1 (xiv) includes among the funds to be consolidated into the new Fund thefollowing territorial funds: the Administration Employees' PensionFund, established by Ordinance No. 17 of 195T; L/ and the South-West AfricaTeachers' Pension Fund, established by Proclamation No. 39 of 1931. _/ Methodof consolidationSection 3 transfers the obligations and liabilities:of all the pension funds to thenew Fund. Section 4 provides for the transfer (with limited exceptions) from theseparate funds to the new Fund.affected of membersSection 12 prohibits persons employed in positions covered by the new Fund frombecoming members of provincial or territorial pension funds. It also prohibits anyadministrator from managing or controlling such a provincial or territorial pensionfund.Application of the Act to the TerritorySection 10 provides that the Act and amendments thereto apply "so far as isnecessary for the effective application thereof", to the Territory,and section 1 (xx) defines "the territory" to include the Eastern Caprivi Zipfel.Section 1 (xiv) (). Section 1 (xiv) (k).

- 132 -Provincial and the Territory Service Pensions ActTechnical supplementEffect of the ActThe effect of this Act is to destroy the independent territorial pension iystems (aswell as the independent provincial systems) by binding them into one SouthAfrican system so completely as to make any subsequent separationextraordinarily difficult.The Act undoubtedly permits -- although it does not guarantee -- moreflexible operation of the pension system by virtue of its size. Thus there is lesslikelihood that fluctuations in employment -- such as a relatively large number ofemployees in a particular branch of service retiring at approximately the sametime -- will create temporary financial problems, as can occur when pension fundshave relatively few members.Discriminatory provisionsDiscriminatory provisions as to membership which were found in thelegislation establishing the territorial funds merged into the new Fund are carriedover into the new Fund as a matter of course.

- 133 -PUBLIC SAFETY ACT

No. 3 of 1953, as amendedGeneralThis legislation was enacted to end the Defiance (of Unjust Laws) Campaign andthe African protests against apartheid laws which took plaie in the early :9505;but it was first applied after the Sharpeville Massacre. It provides for governmentby decree whenever the State President declares an emergency arising out ofdomestic disorder.Application to the TerritoryThe Act is made applicable to the Territory in general terms I/ but not to theEastern Caprivi Zipfel.Declaration of state of emergencySection 2 (1) empowers the State President to declare that a state ofemeroency exists in all or a part of the Republic, including, by definition, theTerritory, if public order or safety is threatened and ordinary law is insufficient tocope with the emergency The declaration is limited to 12 months, but a newproclamation may be issued when the preceding one expires. 2/Emergency regulationsSection 3 provides that once the State President has declared a state of emergency,he may issue such regulations as he feels "necessary or expedient" to provide forpublic safety and order, and they may be made applicable even outside theemergency area. VThe State President's regulations may provide penalties for contravention and maydiffer for different areas or "classes of persons". But no regulations may be issuedwhich draft persons into the military services, affect legislative bodies in theRepublic or the Territory or limit the rights of employees in labour disputes asestablished in South AFrican legislation existing at the time the emergency wasdeclared. VThe regulations authorizes summary arrest of persons and their detention withinor outside the emergency area. If their detention continues for more than 30 days,it must be reported to Parliament within a fortnight thereafter. j/Emergency regulations must be presented to Parliament within 14 days oftheir issuance. If Parliament fails to approve them, they are deemed disapprovedand lapse. Y/ Sections 1, 5 (1).?J Section 2 (2)./ Section 3 (1) (a), (b) (paragraph (b) added by Act -No. 76 of 1962, section 16).Section 3 (2), (3).Section 3 (4), (lbi) (subsection (bis) added by Act No. 62 of 1955, sec. 31). §_Section 3 (6).

Public Safety- 134Pover of Administrator in special circumstancesIn special circumstances, when the Administrator believes that "urgentlynecessary", he may, by notice in the territorial Gazette, exercise any of the powerswith regard to the Territory hich the State Presiaent can exercise under the Act.Such proclamation shall remain in -effect for no more than 10 days. /

/ Sections 4, 5 (2)-(4).

- 135 -public Safety Act Technical supplementZeneralThis Act was first employed after Sharpeville. 1/Declaration of a state of emergencyThe state of emergency proclaimed in the Gazette may be declared as of not morethan four days before the date of the proclamation. It would appear that this hasthe effect of creating crimes ex post facto for a period during which the kinds ofaction made illegal are likely to have been widespread.-Emergency regulationsSection 3 (3) (b) limits the penalties which the State President may invoke forviolation of emergency regulations to a fine of not more than R1,000 ($1,i50) orimprisonment for not more than five years.The provision permitting different regulations for different "classesof persons" presumably means for whites and non-whites (or certain non-whites).The State President may apply all or part of the Industrial Conciliation Act of1937 _/ o the Territory in order to protect legitimate employee action there whileemergency regulations are in effect. 3/Interpretation of the ActSeveral cases came before the courts in connection with the emergency declaredin 1960. In Brink v. Commissioner of Police, j/, the Transvaal Supreme Courtheld that the government may prevent detainees under the regulations fromhaving access to legal counsel. Subsequently the same court ruled that, in theabsence of a showing of bad faith, it could not examine the validity of reasons forarrest and detention under the Act. /See Proclamations Nos. 90 and 91, South African Govern No. 6403, 30 March1960. No. 36 of 1937, now replaced by Act No. 28 of 1956. Section 3 (3) (d) (ii).1960 (3) S.A. 65 (T). Stanton v. Minister of Justice, 1960 (3) S.A. 353 (T).sent Gazette Extraordinary'-I

- 136 -PUBLICATIONS ACTNo. 42 of 1974(Never legally in effect in Namibia)GeneralThis Act replaces, at considerably greater length, South Africa's basic censorshiplaw, the Publications and Entertainments Act of 1963. 1/ It was drafted on therecommendation of a government commission established to look into theoperation of the earlier law. 2/The primary purpose of the Act is to "preserve the characteristic devout andconservative character of South African society, and to protect it against the spiritof permissiveness and moral decay which has become prevalent throughout theworld, and is also permeating the communications media in South Africa,..."

The Act creates a complex administrative structure to censor, for moraland political purity, publications, recordings, art, movies, theatre, and otherentertainments and "objects." It eliminates judicial review of censorship decisionsby channelling all appeals to an administrative tribunal whose decision onsubstantive issues is final.Administrative structureThe Act creates a tripartite censorship structure: It consists of a"directorate," to administer the censorship programme; committees, whichexamine books, films, plays etc., to determine if they are undesirable; and apublications appeal board. _/DirectdrateThe directorate of publications consists of a director, a deputy director and notmore than three assistant directors. They are appointed by the Minister of theInterior. 5/CommitteesThe directorate appints an indeterminate number of committees if, whenand where they are needed. Each committee consists of not less than three personschosen from a list supplied by the Minister. Committee members are chosen fortheir responsiveness to Afrikaner values, not for their academic qualifications andknowledge of literature or the arts. 6/1 Act No. 26 of 1963.2 House of Assembly Debates (Hansard), 12 August 1974, col. 465. 3/ Ibid.,column 467.bid~., col. 470../ Section 2 (1), (2).6/ Sections 4, 5; Debates, 12 August 1974, col. 471.

publications- 137The Act also provides for the establishment of a Coloured advisory committeeand an Indian advisory committee. 1/Publications appeal boardThe appeal board consists of not fever than three persons. The chairman, selectedby the State President, shall be a judge, practicing lawyer, or law professor of atleast ten years' experience. Other members shall be selected by the chairman froma list of candidates designated by the State President. / Section 37 equates theboard with a court: it is criminal contempt to "insult, disparage or belittle" anymember of the board, to prejudice, influence or anticipate its proceedings, or tocommit any other act which would constitute contempt if done in relation to acourt."Undesirable" definedSection 47 (2) substantially reproduces the definition of "undesirable" inthe 1963 Act. 9/ A thing is undesirable if any part of it is morally or politicallyoffensive in that it: (a) is indecent, obscene, or offensive or harmful to publicmorals; (b) is blasphemous or offensive to any sect; (c) ridicules or iscontemptuous of any race; 4{d) harms-relations between the races;. (e) prejudices

state safety, general welfare, or peace and order; or (f) discloses certain mattersbrought out in judicial proceedings. Section 1 provides that the Act shall beapplied so as to uphold a Christian view of life. "This provision is the foundationstone of the Bill. All the other clauses should be interpreted in the spirit of thisprovision ...."The effect of finding matter undesirableThe Act makes it a criminal offense to produce, import, publish, exhibit ordistribute anything deemed undesirable by a committee or to show a film "inpublic" which does not have a certificate of committee approval. 11/ ("In public"is broadly defined to include a commercial cinema, a club or any other placewhere films are shown to persons who have paid membership dues orcontributed to a fund. 12/)If a committee determines that a publication, recording or object whichis one of a series is undesirable and believes that subsequent issues are likely to beundesirable also, it may declare future issues undesirable and prohibit theirdistribution. L/ A committee may also prohibit importation of all publications,recordings or objects published by a specific publisher or which deal with aspecific subject. 1_/A committee may prohibit possession by any person of any publication, recordingor object it adjudges undesirable. 1_/Sections 6, 7§J Section 35 (15-(3).9/ Debates, 12 August 1974, col. 468. 10/ Thid.11 Sections 8 (1), 19 (1), 34.12/ Section 17 (1) (xiii). / Section 9 (i), (2).14/ Section 9 (4). / Section 9 (3).

Publications- 138A film deemed undesirable in part may be denied a certificate of approval or maybe granted one on condition that certain portions are excised, that the film isshown in certain places only, or that the audience is restricted to adults or towhites only. 16/Performance of a public entertainment considered undesirable in part may beprohibited by a committee or may be permitted with the objectionable partsomitted or subject to other conditions. 17/Violation of a condition imposed by a committee is an offence. 18/ProcedureAn official of the Customs and Excise Department, the Minister of the Interior, apolice officer, or any other person may bring any publication, recording, object orentertainment to the attention of the directorate as possibly undesirable; the thingis then referred to a committee for consideration. The directorate may also referauiy such thing to a committee on its own motion. 12All films are subject to official screening, and may not be shown in public withouta certificate of committee approval.- The Secretary for Customs and Excise hasimported films automatically forwarded to the directorate for referral to a

committee, and dom~stically produced films must also be submitted forclearance. 2O/In considering a publication, recording, object or film, the committee examines itand makes its determination without hearing any person. 21/ A c. ittee consideringa film may seek the advice of the Coloured and Indian advisory committees as tothe film's effect in their communities; it must prohibit or impose conditions onexhibition of the film in those communities in accordance with the advicereceived. _-/When the directorate brings a questionable public entertainment to the notice of acommittee, the committee shall make "such enquiries as it may deem necessary"to determine whether the entertainment is wholly or partiallyundesirable. 93/A committee must inform the director of its reasons for holding any matterundesirable. 2_/Lists to be publishedA prohibition on importing, distributing or possessing a publication,.Wrecording or object becomes effective only upon publication in the Gazette. 91/.Section 16 (1) requires the director to publish in the Gazette an annual list Wofpublications and objects-held undesirable during the year and a consolidated listat five-year intervals.k6 Section 19 (1). 1 Section 30 (4).118/ Sections 8 (5), 19 (6), 27 (2), 34 (1), 43. PJ Sections 10 (1), 30 (1). 20Sections 19 (1), 28 (1), (2).g/ Sections 11 (2), 21 (1). 22 Section 21 (4).2 Section 30 (1), (2).g Sections 11 (2) (c), 21 (5) (a), 30 (4) (a). ?5J Section 8 (1) (bY- (e).

Publications- 139AppealsThe directorate or the private person affected may appeaZ any decision of acommittee to the Publications Appeal Board; such decisiops may not be appealedto a court. 26/ Section 40 (1) also provides for appeals to the board againstdecisions of the directorate concerning applications for permits, exemptions etc.Every committee decision to prohibit possessio of an undesirable publication,recording or object shall be referred by the directorate to the board forconfirmation or nullification. k/The board hears and determines appeals, in effect, de novo. It examines thedisputed matter, the committee's reasoning, the cited grounds for appeal, andother relevant material and documents. The private person concerned has the rightto appear before the board and to question witnesses, but not to adduce evidenceexcept with board consent. Meetings of the board are not open to the public, butthe board is required to make public the reasons for its decision on appeal. 28/No decision of the board may be appealed to a court of law, except when malafides is alleged or in order to correct procedural irregularities. V

The Act also provides that a person may request a review of an unfavourabledetermination after a lapse of two years. A committee is thereupon asked toreexamine the item and.give a new decision; that decision may be appealed to theboard. 30/ExemptionsThe directorate may grant individuals or groups exemptions from certainrequirements of the Act. 2YRegistrationEvery publisher is required to print his name and business address onevery copy of everything published by him unless he is subject to registrationunder other provisions of law. 31/ Every maker or distributor of films mustregister under the Act. 3J/Searches and seizuresSection 17 (1) grants broad powers of entry, examination, and seizure inconnexion with undesirable publications and objects.26 Sections 13, 14, 23, 24, 31, 32, 38. g[ Section 9 (5).W8 Section 36; Debates, 12 August 1974, col. 503. W Sections 38, 39;Debates, 12 August 1974, cols. 530-31. 10/ Sections 15, 25, 33./ Sections 8 (3), 19 (3).32/ Section 18.X/ Section 29.

Publications- 140PenaltiesThe penalty for contravention of provisions of the Act s a fine ofnot more than R500 ($575), imprisonment for not more than sij months, or both.Repeated offenses draw heavier punishment. 1 RegulationsThe Minister is granted broad powers to make regulations by section 14.Application to TerritorySection 46 provides that the Act shall apply in the Territory, including the EasternCaprivi Zipfel.3-4/ Section 43.

- 141 -Publications ActTechnical supplementThe 1974 Act was introduced because it seemed impossible, to deal with theshortcomings and failures of the 1963 censorship act by mere.)lmendment. Theseshortcomings and failures included:- the inability of the police to cope with persons who distribute "writtenpornography" as well as publications propagating anarchy, bomb-making,revolution, etc. /- the development of unacceptable (indecent, blasphemous or "communistic")literature by young Afrikaners writing in South Africa such as Kennis vandie Aand (Knowledge of the Night) by Andre Brink. 2/

- the alleged "tendency" of courts to overrule bans on books and othermatters -- a tendency evidenced by a mere handful of cases (e.g., reversingthe ban on the music and words of Jesus Christ Superstar) 3/ but eachone criticized violently by the Nationalist Party and press.DirectorateThe correct title of the director is the Director of Publications. 4/Section 47 (1) (xiv) provides that the Minister responsible for administration ofthe Act, appointment of the directorate etc., is the Minister "to whom theadministration of this Act is from time to time assigned...." In practice thisappears to the Minister of the Interior.CommitteesIn discussing the composition of the committees, the Minister of the Interiorreminded Parliament that under the 1963 Act not fewer than six members of thePublications Control Board (which passed on publications, films andentertainments) were required to have special knowledge of art, language,literature or the administration of Justice. The commission considering theoperation of that Act stated, however, thatthe assessment of publications or objects, films and public entertainments is basedon something more than mere professional or academic qualifications. It is basedrather on values and theguaging of values.The Minister announced subsequently that there would be a number of fulltimecommittees in Cape Town to examine films and mass publications of dubiousvalue. In addition, there would be part-time committees there and elsewhere toexamine "the more complicated publications and entertainments." 5// Nouse of Assembly Debates (Hansard), 12 August 1974, cols. 473-4. 2/ NewYork Times, 3 October 1974, p. 8. 3/ Ibid.Section (2) (a)./ Debates, 12 August 1974, col. 471.

Publications, T.S.- 142Advisory committeesThe Coloured and Indian advisory ommittees consist of Jot more than fivemembers each, appointed by the Executive of the Coloured Perons RepresentativeCouncil and the Executive Committee of the South African Indlin Councilrespectively.No advisory committee was created for Africans because "their own orthogeneousLsic_ development is different from that of the Coloureds and Indians ..." 6/Publications appeal boardSince there will be more committees under the 197T4 Act than there were under itits predecessor, and since the new committees will probably function moreautonomously, it appears that only the appeal board can effectively exercise anyunifying influence over the whole censorship process."Undesirable" defined

The exact wording of the definition of "undesirable" in the Act refers in clauses(b), (c), and (d) to matters which are offensive in one or another way to "anysection" of-the country's inhabitants.In clause (d), "section" obviously means race ("population group"), andit probably does also in clause (c). In clause (b), however, "section" clearly refersto denomination or sect. The Opposition did not criticize (c) or (d), presumablybecause they protect the sensibilities of whites. But an Opposition Speaker didprotest against the phrasing of clause (b);Blasphemy is concerned with the acceptance of the sovereignty of God... and it is accepted that it should be a punishable crime in thiscountry ... But if one looks at "undesirable" ... one finds ... thatthe Government intends now, in so far as blasphemy is concerned --- and that is inclause 47 (2) (b) --- to couple earthly and human convictionsand feelings with the whole concept of blasphemy .... These are two vastlydifferent matters ... 3]The Opposition also criticized clause (e), which, they said, should have beenlimited to seditious or subversive matters. "As it stands now, it iL1:lause(e)_ will enable action to be taken when there is criticism of Government policyand not only when the interests of the State, as distinct from the Government, arethreatened...."6_/ Minister of the Interior, quoting the report of the Government Commissionwhich examined the operation of the 1963 Act, Debates, f0 August 1974, col.T72. / aid., cols. 491-2.

- 143 -Publications, T.S.The effect of finding matter undesirableThis digest refers to a "publication, recording or object" since section4T (i) (xx) (&) includes recordings in the definition of "publication of object,' andrecordings are frequently subject to censorship. For example, both the music andthe words of Jesus Christ Superstar were banned under the -1963 Act, although itwas reported that this decision was subsequently reversed by the courts. 8/ On 24January 1975, the record and cassette tape of the same production were also listedas "undesirable". 9/The Minister of the Interior indicated that the government was aware thata committee might hesitate to apply the stringent provision which bans thepublication or distribution of all future issues of a publication. Consequently,section 9 (2) provides that a committee may prohibit all future issues except underauthority of a permit. 10The power to declare mere possession of a publication, recording or objectunlawful is intended, according to the Minister of the Interior, to be exercisedonly as to those which are "grossly undesirable." Publications which might fallunder this description, he seemed to indicate, include those dealing with "anarchyand rebellion and with methods of bomb-making, etc." as well as "writtenpornography." 11/ There is, however, no such restriction in the text of the Act onthe application of section 9 (3). It should be noted that the penalties for violation

of the section apply to inadvertent possession resulting from earlier (legal)acquisition of a banned publication as well as to illegal acquisition andpossession. 12/ProcedureUnder the new Act, as under the old, Customs and Excise officlals willprobably remain the primary means of excluding imported pornographic orpolitically suspect materials. "LThe Customs Act! is by far our greatestinstrument of censorship in South Africa...,It stands like a great sieve at ourharbours and airports ... and serves as the first screening instrument ...." 13/The new Act will also continue to depend on self-censorship by the press -indeed,the Act increased pressure on the South African Press Council to tighten up itsown press Code. That Code makes it punishable by a R6,o0o ($6,900) fine to failto exercise "due care and responsibility concerning matters which can have theeffect of stirring up feelings of hostility" between the races (i.e., against whites) orwhich "can affect the safety and defence of the country." (Emphasis added) 14/8/ New York Times, 3 October 197, p. 8. j/ List B425, Government Notice No.159 of 1975. Government Gazette No. 4568,24 January 1975.10/ Debates, 12 August 1974, col. 4.7. 11/ Ibid., col. 473.12/ Ibid., cols. 522-3.13/ Ibid., 13 August 1974, col. 609.3XI The Guardian, London, weekly edition, 26 October 1974, p. 10; New YorkTimes,6 August 197h, p. 5; Los Angeles Times, 18 October 1974, cited in AfricanStudies Association Newsletter, December 1974, "Newsnotes."

Publications, T.S.- 144Under the 1963 Act the Publications Control Board examined about 1,600 booksevery year, to which its attention was brought by compl ints, turningdown, on the average, about 900 and passing about 600. The 0osition calculatedthat some 10,000 books are now being published annually in thi Republic and thatunder the Publications Act some 5,000 to 6,000 books, bah domestic andimported, will probably be subject to screening by committees. 1_JThe new Act does not provide, as the old one did, that inexpensive paperbacksmay be imported only under permit. That provision has been lifted in view of thegreat number of serious literary, scientific and scholarly worksnow printed in paperback. 1_/The Publications Control Board examined some 3,000 films in 1973; this requiredsome 24 viewing sessions per week. The Opposition estimated that, even so, thatBoard could view only half the films submitted. It pointed out that even before theadvent of national television, which would bring many more films into thecountry, the number of imported films was increasing by 10-20% a year. LI/In explaining the broad definition of "in public" and the rigid provisiohi forcensorship of all films which are to be exhibited "in public," the Minister of theInterior stated that film distributors had increasingly circumvented

the 1963 Act by circulating unvetted and rejected films and films containingportions which had been rejected but not removed. _Jf "There is evidence ... thatthe flourishing market enjoyed by home movie dealers is in fact the resultof a great demand for unvetted films, and films containing rejected portions, fcrexhib-'tion in private dwellings ... amounts of up to R300 per evening are beingcharged for such an unvetted blue film...- g/ExemptionsMany otherwise blanket restrictions or requirements are subject to exceptions orexemptions by permit. Thus, permits may be granted for the printing orpublication of technical, scientific or professional works or publications of a bonafide religious character although they would otherwise be subject to therestrictions of section 9 (1). R/ And the directorate may exempt certain kinds offilms, or films intended for specific purposes, from the requirement of pre-censorship.RegistrationThe Newspaper and Imprint Registration Act (q.v.) 2_ requires the registration ofall newspapers. Section 7 of that Act directs that each newspaper contain theaddress where it is published and the name and address of the proprietor,publisher, and printer.i/ Debates, 12 August 1974, col. 520. 16/ Ibid., col. W4. ! / Ibid., cols. 519-20.,/ Ibid., col. 477.19/ Ibid., col. 479.20/ Section 9 (2).21/ Section 9 (3).22/ Act No. 63 of 1971, section 2.

publications, T.S.- 15Searches and seizuresSection 17 (1) empowers the Minister to authorize any pqson -- notnecessarily a member of a committee -- to enter any place whre it is suspected onreasonable grounds, that an undesirable publicaion, recording, or object is printed,reproduced, displayed, exhibited, sold or-hired out, or kept for any such purpose;to examine any suspected thing and take down particulars concerning it; or toseize it or a copy. Such particulars of such thing or copy shall be submitted to thedirector for submission to a committee. Subsection (5) makes it an offense tointerfere with anyone exercising the powers granted him under the section.In attacking this provision, Opposition speakers pointed out the scope of actionthe section permits:The Minister may authorize whom he pleases when he pleases to enter myhome or your home .... The persons authorized do not even have to bemembers of the board or the committee: they can choose whose homeor place of business they will visit, and they can choose any time ofnight or day; there is no qualification in that regard whatever. Thesepowers are wider than the powers which the police have today to searchfor evidence of suspected crimes.... ?J

23, Debates, 12 August 1974, col. 502.

- 146 -REHOBOTH INVESTMENT AND DEVELOPMENT CORPORATION ACTNo. 84 of 1969(Never legally in effect in Namibia)GenieralThis Act establishes an Investment and Development Corporation for theRehoboth Ge'biet, to bring capital and enterprises to the Community, so that it candevelop in accordance with the goals set out in the Odendaal Plan. It is similar indesign and concept to the development corporation established for the Colouredsof the Republic. 1/Nature of the CorporationThe Rehoboth Investment and Development Corporation is a corporation ofwhich the Republic is the sole shareholder. It has an authorized capital ofR5QO,000, on which it may pay a dividend of not more than five per cent. 2/Objects of the CorporationSection 3 (a) states that the purpose of the Corporation is to encourageandpromote agriculture, industry, mining, and business in the Gebiet until theCommunity can take over this function for itself. 3/ Subsection (b) provides thatthe State President may assign it other functions.General Powers of the CorporationThe Corporation is given a broad, general grant of power to do "anything that isconducive to the attainment of its objects ..." V In general, the powers listed insection 4 preceding that catch-all grant are related to (i) the generation of capit%--and/or (ii) the establishment and support of local enterprise, particularly of"burgher companies" (i.e., companies entirely owned by members of the Gebiet,with or without participation by the Corporation).Power to carry on undertakingsThe Corporation may itself establish and carry on mining or industrial operationsor commercial or financial businesses. 5/Power to safeguard investmentsIn order to "safeguard" any investment made by it, the Corporation is empowered,apparently by fiat, to take over any burgher company or any business of a member6f the Rehoboth Community._ House of Assembly Debates (Hansard), 9 June 1969, col. 7611r,2 Sections 2, 17, 20 (2).V3 Debates, 9 June 1969, cols. 7614-15.Section 4. For other, more specific, powers, see sections 5-8 (section 6 amend&4by Act No. 80 of 1971, section 26; section 8 amended by ibid., section 27.)__/ Section .(a).Section 7.

Rehoboth Investment- 147LiiLitmation of powers as to land

The Corporation may dispose of land in the Gebiet to members of the Gebie% orto burgher companies only. It may not, by its acts, enabe any member of theGebiet to acquire more than 14,000 hectares in the Gebiet. 7/Direction of the CorporationThe Corporation is run by a Board of Directors, all whites, 8/ appointed by theState President for such period as he shall determine. The Minister of Coloured,Rehoboth and Nama Relations chooses the managing director from amongmembers of the Board. 9/Committees of the BoardSection 14 empowers the Board of Directors to appoint committes to undertakecertain executive duties or to exercise certain Board duties or functions. Afterconsultation with the Minister, the Board may select non-members, includingburghers of the Gebiet, to serve on any of these committees. 10/I_/ Section 6 (2) (a).Debates, 9 June-1969, col. 7615./ Sections 10-13.IO/ See Debates, 9 June 1969, col. 7616.

- 148 -Rehoboth Investment CorporationCross-reference tablesection(s)Sub.lectDefinitionsEstablishment of the CorporationObjects of the Corporation Powers of the Corporation in generalOther powers of the CorporationDirectorsCommittees .of the Board Managing director andgeneral manager Share capital Liability of shareholderExpenditures Utilization of Corporation's propertyExemption from taxationAccounts, audit, information RegulationsLiquidation of Corporation Use of name of Corporation Application of certainlaws to Corporation Short title.* See also technical supplement under the same or related heading.235-910-13, 16 ~14 1517 18 1920 21 22, 232.2526

Reference in dr discussed under"General powers of the Corporation" ("burgher companies") Technicalsupplement, "Limitations onpowers as to land", ("Gebiet") "Nature of Corporation""Objects of the Corporation" "General powers of the Corporation""Power to carry on undertakings"; "Power to safeguard investments";"Limitations on powers as to land-"Direction of the Corporation" "Committees ofthe Board" "Direction of the Corporation""Nature of the Corporation" Technical supplement, "Nature of the Corporation""Nature of the Corporation"Technical supplement, "Nature of the Corporation"Technical supplement, "Nature of the Corporation"

- 149 -Rehoboth Investment and Development Corporation ActTechnical supplementGeneralInvestment and development corporations are a common and usually highlyacceptable means of assisting poor regions or countries to generate capital andstimulate industrial and/or agricultural development. The South Africangovernment established an Industrial Development Corporation before the SecondWorld War to hasten its own development. It has created the Bantu InvestmentCorporation, and the Coloured Development Corporations in the last decade. 1/Nevertheless, the people of the Gebiet opposed the creation of the RehobothInvestment and Development Corporation even before Parliament enacted thestatute establishing it. This protest was attributed by the then Minister ofRehoboth Affairs to irrational suspicions and mistrust on the part of theRehobothers. 2/ However, J.D. Dup. Basson, an opposition M.P. formerly fromthe Territory, spelled out several of the Baster complaints: (i) they were notconsulted before the enactment of the 1969 South-West Africa Affairs Act (q.v.),which transferred authority over the Gebiet from the territorial Administrator tothe South African government (represented by the Minister); (ii) they were beingsubjected to *taxation without representation"; and (iii) they were denied any sayin the development of their own community, in particular representation of theirlocal government on the Board of Directors of the Corporation. 3/ It was alsopointed out that they were not allowed to buy shares in the Corporation. 4/ (Seebelow, "Nature of the Corporation".)Although it would seem difficult for Rehoboth inhabitants to hold outindefinitely against it, Baster opposition did not cease when the Corporation wasfinally established. Indeed, a new complaint was added: the Corporation was sopowerful as to render the Basterraad (elected advisory council) and the Kapitein(chief executive, who is the white magistrate of the district) superfluous. J/Nature of the CorporationThe Corporation is a corporation in the American, or a limited liability companyin the British, sense of the .word:- it is registered by the South African Registrar of bmpanies 6/;

- the shareholder is liable for only the amount unpaid on the shares itholds 7/; and- it has perpetual succession, in that it can be wound up only by Act ofParliament. 8/I/ House of Assembly Debates (Hansard), 10 June 1969, col. Th14l. V Ibid.,col. 7653.WIT, cols. 763-35.1_671d., 9 June 1969, col. 7616; 10 June 1969, col. 7644.WSeeWindhoek Advertiser, 9, 11, 17, 18 and 19 June 1910; Star, Johannesburg,21 November 1970.Section 2 (3). If Section 18.Section 25.

Rehoboth Investment, T.S.- 150The Corporation also has some unique features, inter alia:- The Republic ("State") is the sole source of capital ani sole shareholder;- it has the power to protect its investments by taking oyer businesses,apparently by fiat 10/ (see below);- the State President is empowered to increase the share capital of theCorporation "to such extent as he may deem expedient"; L_/- the Corporation is not subject to income tax; 1J/ and- except as the State President may otherwise decide, the Banks Act, 1_ theCompanies Act, 1_ and certain provisions of South West African law donot apply to the Corporation. 1/It was noted above that members of the Gebiet protested because they were notallowed to obtain shares in the Corporation, although they were financially able todo so since the share capital is divided into 500,000 one-rand shares 16. Thiscomplaint was dismissed on the grounds that it would not be a profitable short-term investment, since it would be several years before the Corporation couldexpect any financial returns. 17/The exemption of the Corporation from income taxes should, in theory, notcost the State any revenue since it is also the only shareholder of the Corporation.But the Territory (i.e., the white Administration in Windhoek -- not the Rehobothgovernment) loses its share of the taxes which would otherwise be collected.Objects of the CorporationSection 3 (b) provides that if the Corporation wants to add other objectives, theState President can so provide by proclamation. WAmong the implicit objects ofthe Act, as discussed in Parliamentary debate, is persuading ambitious Rehobothyouths to remain in the Gebiet and contribute their skills and services to their ownpeople rather than going off to the more prosperous and fulfilling urban centres.1General powers of the CorporationThe catch-all grant of power quoted in the digest, which follows variousenumerated general powers in section 4, would appear to grant the Corporationpowerf Section 17. i/ Section 17 (2).

12 Section 21. IV Act No. 23 of 1965. 1/ Act No. 61 of 1973. 1I Section 27.Section 17 (1).ly Debates, 9 June 1969, col. 7616; 10 June 1969, col. 7644.Ibid., 9 June 1969, col. 7614. 1/ Ibid., 10 June 1969, col. 7640.

Rehoboth Investment, T.S.- 151limited only by other specific provisions of the Act itself and by other laws,although the wording of the entire clause is somewhat more equivocal than theportion quoted.General powers found in section 4 relating to the genergtion of capitalinclude, inter alia:- establishing loan schemes (subject to Ministerial approval);- providing capital;- lending money;- guaranteeing or underwriting loans, shares or debentures;- guaranteeing contracts and obligations and entering into bonds;- dealing with property in, or of members of the Gebiet;- raising or borrowing money;- holding deposits;- opening bank accounts; and- acting as broker.Powers relating to the establishment and support of local enterprise,in addition to some of the above, include, inter alia:- buying up local enterprises owned by persons who are not members ofthe Community (subject to Ministerial approval);- establishing "burgher companies" to engage in local enterprise; and- furnishing technical assistance and specialized information and advice.The most important and controversial clause empowers the Corporation itself (butonly with the approval of the State President) to "establish and carry on" any kindof undertaking (industrial, mining, commercial etc.). This, ofcourse, raises the possibility of overwhelming competition by a rich and powerfulCorporation against local enterprise, or the aborting of such enterprise afraid tochallenge the Corporation's superior strength. Limitations on powers as to landOne reason for the slow development of the Gebiet, which contains someOf the better agricultural land in the Territory, has been the fear, arising out ofbitter experience, of alienation of land to non-members of the Community. Theoriginal German demarcation gave 1,795,000 hectares to the Gebiet, of which45T700O,or almost a quarter of the total, were sold to whites within a few Years.W This experience led the Community to prohibit (i2)" the mortgaging Of realproperty to whites and (ii) the establishment of companies with power to holdland, for fear that it should be lost to the Community. 91/20/ hbid., 10 June 1969, col. 7639.-Ibd., 9 June 1969, col. 7615.

Rehoboth Investment, T.S.

- 152The Act provides for the establishment of "burgher companies" (composed solelyof members of the Gebiet, with or without participation by the Corporation),which, with financial and technical assistance by tbe Corporation, can hold landwithout threatening its loss to the Community. The Corporation is alsoempowered to hold land, 22/but to protect the interestsSof the Gebiet, it mayalienate it only to members of the Gebiet or to burgher companies. To prevent thehandful of rich Basters, some of whom are alleged to have assets exceedingR1O0,000, 23/ from further extending their landholdings, the Corporation maynot alienate land to any member of the Gebiet if such act would bring his holdingsto over 14,000 hectares.It should be noted that the present area of the Gebiet (including land added to orreserved for it by the South African government in the 1920s, and more recentlyto fulfil commitments under the Odendaal Plan) is 1,312,239 hectares. L4/ Thedefinition of the Gebiet in section 1 (v) of the Act refers to the area bounded inProclamation No. 28 of 1923, as amended, "and as it may be altered from time totime ...".The area of 1,312,239 hectares averages out to just under 70 hectares per capita,based on a population of approximately 19,000 Rehobothers. ?5j Section 6 (2)(a)of the Act prohibits action by the Corporation enabling any member of theCommunity to acquire more than 200 times the theoretical average land holding.Direction of the CorporationNothing in the Act prohibits the appointment of members of the Gebiet to theBoard of Directors. The only specific prohibition is against the selection oflegislators. 2_/. The expressed intention to name members of the Gebiet topommittees of the Board confirms that there is no difficulty under the principlesof separate development in seating a Baster on the Board. ?J But governmentspokesmen have made it clear that in the interests of placing the Corporation "ona sound basis" and of managink and controlling it "on sound business principles",members of the Rehoboth Community will not be named to the Board, at leastuntil "they have progressed to such an extent that they can comply with the saidrequirements ..." 2/Committees of the BoardThe natural inference to be drawn from the Second Reading speech of theMinister of Rehoboth Affairs 22/ as well as from his interchange with anOpposition Member, j/ is that the Corporation would co-opt members of theGebiet to serve on these committees. This is not required by the Act, however,any more than the exclusion of Basters from the Board is required.IV Section 4 (1).23 Debates, 10 June 1969, col. 760.Odendal Report, paragraph 255; Debates, 10 June 1969, col. 7639.It should be noted, however, that the comparison between the present areaand that demarcated by the Germans is incorrect.2_/ Population estimate, 1974, Republic of South Africa, Department of Statistics,cited in Die Suidwes-Afrikaner, 7 October 1975. 2/ Section 12.

25 Debates, 10 June 1969, cols. 7636, 7644. g./ bid.,9 June 1969, cola. 7615-6.gV/ RU., col. 7616. 0 I2 E ., 10 June 1969, col. 764.

- 153REPUBLIC OF SOUTH AFRICA CONSTITUTION ACT No. 32 of 1961(Never legally in effect in Namibia)Section 13 of this Act was purportedly applied by Act No. 102 of 1972, section30.Section 13 makes it a criminal offense to commit any act calculated to violate thedignity or injure the reputation of the State President or an acting State President.

- 154"SABOTAGE ACT" (GENERAL LAW A'EWD>ENT ACT)No. 76 of 1962, section 21, as amended (Never legally in effect in Namibia)neralThe so-called "Sabotage Act" is, in fact, merely one section (consisting, asamended, of eight subsections) of an annual General Law Amendment Act, i.e.,an act which is designed primarily to make many minor amendments to manylaws, rather than tc amend extensively a single act.It is considered to be, in many ways, a forerunner of the Terrorism Act. 1/ It setsnew and heavier penalties for illegal acts if allegedly performed to protest SouthAfrican (racial) policies. "Sabotage" definedThe new crime of "sabotage" is defined as committing any wrongful and wilfulact which injures, destroys or endangers public health or safety, public utilities ortheir services, law and order, free movement of traffic, or state or privateproperty; or as attempting, conspiring, inciting, procuring or aiding thecommission of such an act. It also encompasses illegal possession of explosives,firearms or weapons, and trespass on any land or in any building. ?/PenaltiesThe penalty for sabotage is the same as for treason: minimum, five years'imprisonment (without an option of suspended sentence, remission of any sort, orspecial treatment for juveniles), and maximum, death. 3/ Burden of proof on thedefendantThe prosecution does not have to establish any criminal intent on the partof any person charged with sabotage. Instead, the accused may be acquitted onlyif he proves that he had no intention to produce any of 10 broadly worded"effects" and also that, objectively regarded, his action was not calculated toproduce any of these effects, which include, inter alia:promoting general disturbance or hampering the maintenance of law and order;crippling any "undertaking";causing or encouraging insurrection or forcible resistance to government;encouraging the achievement of any political aim or change in the Republic;injuring or endangering anyone or causing him or the State financial loss;promoting hostilities between whites and non-whites;interfering with public utilities or public health; and

"embarrassLin/ the administration of the affairs of the State". 4/ 12/ Act No. 83of 1967.?J Sub-section (1)./ Sub-sections (1) and (4) (f) (substituted by Act No. 34 of 1969, sec. 33 (b))._/ Sub-section (2).

Sabotage- 155&torney-General to authorize prosecutionSub-section (3) requires the written authorization of the Attorney-General toprosecute anyone under the Act.kocedural provisionsThe Act contains a number of procedural provisions which tend to prejudicedefendant, including provisions:for the joint trial of persons for different offences under the Act; 5/for trial far from the site of the alleged crime and at any time; 6/for trial before a superior court without preparatory examination if theAttorney-General so directs. _/Double JeopardySubsection (4) (g) in effect denies the defendant the defense of doublejeopardy (i.e., "autrefois acqut"') by providing that the fact that the State failed toestablish that a particular act-constituted sabotage under one theory will notprevent it from seeking a conviction for the same physical act under another legaltheory.Application to the TerritoryThe Act is purportedly made applicable to the Territory and the EasternCaprivi Zipfel by an amendment enacted in 1966. 8/ However, the amendmentbecame effective on 4 November 1966, after revocation of the mandate.Sub-section (4) (c).V/ Sub-sections (4) Tb) and (6) (added by Act No. 62 of 1966,.section 19). 7/Sub-section (4) (aT (substituted by Act No. 34 of 1969, section 33 (a)), (d). 81Sub-sections (7) (a), (8), added by Act No. 62 of 1966, section 19.

- 156 -"Sabotage Act "Technical supplement"Sabotage" definedThere are many close parallels between "sabotage" as defined in this Actand "terr6rism" as defined in the Terrorism Act. (See particularly the comparisonbetween "effects" as set out under the rubric "burden of proof on defendant" and"results" as discussed under the Terrorism Act.)One major difference is, however, that sabotage is defined only as "wrongful andwilful" acts while terrorism encompasses all acts which fall within its very broaddefinition. Under the Sabotage Act a lawful strike which interferes with thedistribution of food or fuel does not constitute sabotage, nor does the interferencewith traffic resulting from negligent loading of a truck which causes its contents

to fall on the road. Only unlawful possession of explosives or rirearms, and onlytrespass, not mere presence on land or in a building, constitutes sabotage.Nevertheless, the definition of_ "sabotage" is wide insofar as minoroffenses which may be intentional acts are concerned: thus injury to privateproperty is included as well as obstructing fire-extinguishing services, so thatpainting a slogan on some one's back fence may bring about the death penalty.Similarly, mere illegal possession of a gun or other weapon, without any evidencethat an injury was caused or intended thereby, constitutes sabotage, as does theslightest trespass. It should be noted in this connexion that section 10 (3) of theGeneral Law Amendment Act of 1949, defined "dangerous weapons" tc includethe following, inter alia:handles with wire, chains, or other heavy objects attached;certain metal rods and wire;daggers and knives;spears, assegais, and spiked sticks;knuckledusters and sandbags;heavy jumpers, crowbars, and hammers, and axes and pickaxes; and solidrubber batons. l/It is quite possible that'anyone who stole any of these objects or carried one withhim in an attempt to commit a theft could be charged with sabotage.Subsection (5) exempts from the definition of sabotage strikes and other unionactivities which were lawful prior to the enactment of the Sabotage Act.i/ Act No. 54 of 1949. This provision has since been replaced by the DangerousWeapons Act, No. 71 of 1968, which defines the term to includeany object"likely to cause serious bodily injury if ... used to commit an assault....'

Sabotage, T.S.- 157Burden of proof on the defendantIn S. v. Alexander the Cape Provincial Court pointed out that an accused whohad committed a wilful and wrongful act within the definit*On in subsection(I) of sabotage might nevertheless exculpate himself by showingSthat "it was !otcalculated to produce the effects set out in subparagraphs-2 (a) to (J)". 2/ In sostating, the Court ignored the fact that the subsection c-ompletely reveries Wheburden of proof in criminal cases.In a hypothetical case in which a person wrongfully barricaded a road, therebyimpeding traffic, in order to round up escaped livestock belonging to him, thedefendant might be able to establish his lack of intent to produce any of the listedeffects by showing a provable different intent. But persons whose unauthorizedparade temporarily held up traffic might be unable to prove that they did notintend to "embarrass the administration of the affairs of the state" even if theywere only interested in protesting an increase in the officially controlled price ofmaize.Attorney-General to authorize prosecutionThe purpose of this subsection is clearly to permit a political decision

concerning prosecution under the Act, so that "ordinary" criminals are not triedunder the Act for simple crimes that may also conscitute sabotage. It enablesprosecutors to harrass political opponents by threatening to charge them under theAct instead of under the normal criminal law.Procedural provisionsThe provision for joint trials under this Act is similar to that under theSuppression of Communism Act. 3/ It permits joint trials of persons accused ofdifferent acts, provided that they occurred at about the same time and place. Themass trials which are possible under such a provision handicap the defense bymaking it difficult to co-ordinate efforts; in some cases the defence of someaccused may be injurious to the interest of others. Popular prejudice against anydefendant is likely to rub off on his co-defendants.Subsection (6), like subsection 12 (6) (b) of the Suppression of Communism Act,permits the trial of an accused wherever the prosecution pleases by deeming thatthe offence was committed wherever the accused "happens to be" (i.e., whereverhe is brought to trial).1965 (2) S.A. 818, at 821 (C).a' Act No. 44 of 1950.

- 158 -SOUTH AFRICAN CITIZENSHIP ACT No. 44 of 1949, as amendedeneralThis Act imposes involuntary citizenship on most Africans born.and living2.n Namibia.It is divided into five parts, dealing with: definitions; South Africancitizenship; citizenship of married women; loss of citizenship; and miscellaneousmatters.Citizenship by birthSections 2 (2) and 3 make all persons born in the Territory after 1926 citizens ofSouth Africa. Citizenship by descentSection 5 (1) provides that every person born in the Territory before 1926 is aSouth African citizen if his or her father was at the time of the birth a Britishsubject under South African law then in force and a Union citizen or domiciled inthe Union or the Territory. Application of ActSection 41 L/ makes the Act applicable to the Territory, including the EasternCaprivi Zipfel.I/ Amended by Act No. 23 of 1964, section T.

- 159 -South African Citizenship ActTechnical supplement.Citizenship by birthThe 1926 cut-off date, which distinguishes persons who are made citizens by birthfrom those made citizens by descent, is the effective date of the BritishNationality in the Union and Naturalization and Status of Aliens Act. l/

Section 2 (2) of the Citizenship Act refers to persons born in the Territorybetween the 1926 cut-off date and the effective date of the Citizenship Act in1949. Section 3 covers persons born since the 1949 effective date. All suchpersons are South African citizens whether or not they desire to be, by operationof the statute, unless they fall under an exception in section 3.Section 3 makes certain exceptions to the principle of ius soli, whichthe Act generally incorporates, as to persons born since 1949. These exceptionsinclude: a child born in South Africa or the Territory to a-foreign diplomat (ormember of his official family) and a non-South African mother; and a person bornin South Africa or the Territory whose mother was not a South African citizen andwhose father, at the time of the birth, was a prohibited immigrant or was notentitled under the law then in force to permanent residence in South Africa or wasan enemy alien in South African custody or in enemy-occupied South Africanterritory.AppliLcation of the ActFor technical reasons, the definition of "Union" (now "Republic") includes theTerritory except in sections 2 and 5.j/ Act No. 18 of 1926.

- 16o -SOUTH-WEST AFRICA AFFAIRS ACT OF 1969 No. 25 of 1969, as amended(Never legally in effect in Namibia)*@eneralThis Act completely alters the traditional legislative, administrative and financialrelations between the Territory and the Republic. It ends the "home rule" enjoyedby the Territory since the establishment of the 1925 Constitution 1/ by returningto the South African government extensive powers and functions exercised foryears by territorial officials.In form, the Act consists in considerable part of amendments to earlierlegislation,particularly to the 1968 South-West Africa Constitution Act. 2/Legislative rearrangementsSection 14 removes 25 broad classes of subjects from the jurisdiction ofthe territorial Legislative Assembly and returns them to the joint jurisdiction.ofParliament and the State President. It leaves the Legislative Assembly withvirtually the same powers as provincial legislative councils have.Administrative rearrangementsSection 19 (1) provides for the transfer to the appropriate Minister in Pretoria ofthe administration of every matter as to which legislative powers are transferredby section 14 from the Legislative Assembly to Parliament. When there is aquestion whether, for administrative or revenue collection purposes, anyparticular matter falls under a subject within or outside the competence of theLegislative Assembly, the Act empowers the State President to decide.3/Financial rearrangementsThe Act's financial rearrangements have the effect of aborting a quasiindependentterritorial economic "take-off", of integrating the Territory's economy into that ofthe Republic, and of reducing the Territory's economic status

to that of a province. They are discussed in appendix I to this digest.Application to the Eastern Caprivi ZipfelSection 24 makes the Act expressly applicable to the Eastern Caprivi Zipfel.i_/ Act No. 42 of 1925.2 Act No. 39 of 1969.31 Section 19 (5).

- 161 -South-West Africa Affairs,e2,4Cross-reference table*ction(s) SubJect Reference to or discussed inDefinitions3 Amendment of Act No. 56 Relevant to "Financial Rearrangements";of 1954 Appendix I to digest5 Amendment of Act No. 23 Relevant to "Financial Rearrangements";of 1954 Appendix I to digestAmendment of Act No. 91 of 1964Amendment of Act No. 39 of 1968Transfer of the administration of territorial affairsLegislative powers of the State President Certain matters deemed "scheduled"Financial rearrangementsGeneral provisionsSouth-West Africa Constitution Act, No. 39 of 1968; and "Legislativerearrangements""Administrative rearrangements""Legislative rearrangements""Administrative rearrangements" "Financial rearrangements"; Appendix I todigest "Application to the Eastern Caprivi Zipfel"* See also the technical supplement under the same or related rubrics.67-181920 2122 23-25

- 162 -South-West Africa Affairs Act of 1969Technical suoplementGeneralThe legislative and corresponding administrative powers and functions which thegovernment of the Territory exercised prior to the enactment of this law had beengranted by the South-West Africa Constitution Act of 1925. Consequently this

Act merely restored to the direct control of Parliament (and the State President)powers and functions which it had in effect licensed its creature, the territorialAdministration, to exercise until such time as they should be withdrawn.The legislative, administrative, and financial "rearrangements" -- theterm is used officially as well as popularly -- implement the so-called OdendaalPlan 1/ insofar as it deals with intergovernmental relations. The Development ofSelf-Government for Native Nations in South-West Africa Act, 2/ implementsthe Plan insofar as it deals with "native affairs" in the Territory.Although many provisions of the Act amend other legislation, primarily the 1968Constitution Act,3/ other provision-s, particularly section 19, do not. There seemsno reason, as far as substance is concerned, why the entire Act was not drafted tomodify existing statutes.Legislative rearrangementsThe legislative rearrangements brought about by section 14 of the Act arediscussed in extenso under the 1968 Constitution Act, which it amends. It shouldbe emphasized that under both the 1925 Constitution and the 1968 Constitution,which replaced it, the territorial Legislative Assembly was always deniedjursidiction to deal with certain "scheduled" or "reserved" subjects (set forth in thediscussion of the 1968 Constitution). The effect of section 14, therefore, is to addto this list by more than trebling it. (For subjects added to the reserved list, see thediscussion of the 1968 Constitution Act.)By virtue of section 38 (1) of the 1968 Constitution Act, the StatePresident shares with Parliament the law-making powers removed from theLegislative Assembly. / This section empowers him to legislate by proclamationfor the Territory as to all subjects not within the competence of the LegislativeAssembly. In addition, 'section 20 (1) of this Act also conferred on him temporarypowers, which expired on 30 June 1971 1/ to extend to the Territory any SouthAfrican laws dealing with any subject not within the competence of theLegislative Assembly. Since his continuing powers under section 38 (1) of the1968/ Republic of South Africa, Report R.P. No. 128/1964.Act No. 54 of 1968.No. 39 of 1968.See the discussion of "Powers of the State President" under the 1968 Constitution.* / See section 20 (5).

S.W.A. Affairs, T.S.- 163Constitution Act appear more extensive than his temporary powers under section20 (I) of this Act, the reason for enacting section 20 (1) is not clear.Administrative rearrangementsSection 19 (1), which provides for the administration of "scheduled" matters byRepublican rather than territorial officials, does not amend the 1968 Constitutiondespite the fact that it would seem appropriate, as far as the subject matter isconcerned, to have done so. The two acts must be read together to understand theadministrative set-up in the Territory.

Section 19 (6) provides for facilitating mutual assistance between territorial andRepublican officials and for the delegation of powers between SouthAfrican Ministers (administering matters affecting the Territory) and theterritorial Administration. This seems to mean that the Administration may turnover to South African authorities matters which are theoretically of local concernif the latter express an interest in them; and that the South Africans may, despiteideology, hand over inconvenient territorial problems to theauthorities on the spot.Section 21 (1) provides that the collection within the Territory of revenue of thetypes allocated to the Republic under section 22 is deemed a "scheduled" matterfor the purposes of section 19, and therefore under the administrative control ofSouth African officials.

SOUTH-WEST AFRICA AFFAIRS A D4E!fDM1T ACT OF 1949 No. 23 of1949, as amendedThis Act introduced a major step in the de facto incorffbration of Namibia into thethen Union of South Africa by providing for the representation of the whitepopulation of the Territory in the South African Parliament. Other provisions ofthe Act, most of which amended the 1925 South-West Africa Constitution Act,have been repealed.Sections 2T to 29 provide that the Territory shall be represented in the SouthAfrican House of Assembly by six elected Members. Members are required to bewhite South African citizens, qualified as voters, who have five years' residencein either the Republic or the Territory.Sections 30 and 31 provide that the Territory shall be represented in the SouthAfrican Senate by four Senators. Two Senators are nominated by the StatePresident. The other two are elected by the Members of the Territorial LegislativeAssembly voting by proportional representation jointly with the six Members ofthe House of Assembly who have been elected from the-Territory. A Senatormust meet all the requirements for a Member of the House of Assembly and inaddition be at least 30 years old; an elected Senator must own unencumbered realproperty worth at least Rl,OOO ($1,150).Section 34 applies the South African Electoral Consolidation Act of 1946 (q.v.) tothe Territory.1/ As amended by Acts No. 53 of 1955 and No. 53 of 1960.- 164 -

- 165 -South-West Africa Affairs Amendment Act of 1949Technical supplementActs referred to in the digestSouth-West Africa Constitution Act, No. 42 of 1925 (now entirely repealed)Electoral Consolidation Act, No. 46 of 1946 (4.v.)Representation of Namibia in the South African Parliament generallyThe provisions of this Act would appear to overrepresent the Territory inParliament: In the Assembly, some 100,000 whites are represented by six

Members, giving a ratio of one Member of Parliament for roughly every 17,000whites in the Territory; for South Africans the ratio is one Member of Parliamentfor approximately every 23,500 whites. In the Senate, where there are bothelected and appointed Members, there is one elected Senator for approximately50,000 whites; whereas in the Republic the ratio is one elected Senator forapproximately every 95,000 whites.Whites only are represented in ParliamentSection 34 of this Act applies the Electoral Consolidation Act of 1946to Namibia. Section 3 of the 1946 Act restricts the franchise to whites. (Referencein sections 4 and 5 of that Act to certain non-white voters in the Cape and Natalare now repealed by implication and are in any case inapplicable to the Territory.)This restriction of the franchise to whites is also implicit in the Development ofSelf-Government for Native Nations in South West Africa Act. /Qualifications of territorial Members of ParliamentQualifications for Members of Parliament representing the Territory correspondto those of Members elected from the Republic. ?iTerritorial Members of the House and Senate are required by two separateprovisions of the 1949 South-West Africa Affairs Amendment Act to be white:(i) Sections 29 (a) and 31 (b) require Members of the House and Senators,respectively.to be qualified to be registered as voters. As indicated above, theElectoral Consolidation Act limits the franchise to whites.(ii) Sections 29 (c) and 31 (d) require Members of the House and Senators,*tespectively, to be "of European descent". While the term "descent" has raised.ifficulties in South African law in other contexts - as the history of, inter lia, thePopulation Registration Act I/ and the Group Areas Act / testifies1/ Act No. 54 of 1968.2/ See Republic of South Africa Constitution Act, No. 32 of 1961, sections 34,46.I Act No. 30 of 1950.Act No. 36 of 1966.

S.W.A. Affairs Amendment, 1949, T.S.- 166the meaning is clear in the context of this Act. Traditionally populationclassification has been "administratively" determined in Namibia 3/ and is now inthe course of being permanently fixed, at least insofar aui'whites and colouredsare concerned, by new identity documents which haverbeen prepared. 6/All Namibians had South African citizenship involuntarily conferred upon themby the South African Citizenship Act. [/ Consequently all white South WestAfricans qualify to become Members of Parliament insofar as the citizenship("Union national") requirements are concerned. /I Section 29 of the Act, like section 46 of the South Africa Constitution Act, doesnot set a minimum age or any property requirement for Members of the House. Itsets a minimum age of 30 for Senators 2/ as does the South African Constitution.1/ Moreover, it requires that an elected Senator own unencumbered real property

worth at least RIl,O00O ($1,150) 1_/ a requirement that has no counterpart insection 34 of the South African Constitution.Effect of provisions on international status of TerritoryThe provisions for the representation of Namibia in the South African Parliamentwere among those cited by the agents of Ethiopia and Liberia to the InternationalCourt of Justice in the South-West Africa Cases 12/ as evidence of a unilateralchange in the international status of the Territory which South Africa hadeffectuated in violation of the mandate. This issue was not decided by the Court in1966, but it was clearly among the factors leading to the Advisory Opinion onNamibia rendered by the Court on 21 June 1971. 13/ Nevertheless, officialRepublican spokesmen continue to assert that the Territory is a separate entity andnot a fifth province (however much it may be treated like one). 4/J/ House of Assembly Debates (Hansard), 30 July 1970, col. 715. J IdentityDocuments in South-West Africa Act, No. 37 of 1970 (q.v.).Act No. 44 of 1949 (q.v.).See sections 29 (c) and 31 (d).2/ See section 31 (aT.10/ Section 34 (a).i11 Section 31 (e).L2/ South-West "Africa Cases (Ethiopia v. South Africa; Liberia v. SouthAfrica), Preliminary Objections, Judgment of 21 December 1962: I.C.J. Reports1962, p. 319; and South West Africa, Second Phase, Judgment, I.C.J. Reports1966, p. 6.!V Legal Consequences for States of the Continued Presence of South Africain Namibia (South West Africa) notwithstanding Security: Council Resolution276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 1d. 14 See Debates, 14May 1971, cola. 6862-4.

- 167 -SOUTH-WEST AFRICA AFFAIRS AMENDMENT ACT OF 1951No. 55 of 1951, as amendedOnly section 4 of this Act remains in effect. Most of the othersections were repealed by the South-West Africa Constitution Act of 1968. I/Section 4 transfers jurisdiction over judicial matters in the Eastern Caprivi Zipfelfrom the High Court of South West Africa 2/ to the Transvaal Provincial Divisionof the Supreme Court of South Africa. Subsection (2) provides that the EasternCaprivi Zipfel may be constituted a separate circuit district of the TransvaalDivision or included in any other circuit district.Subsection (4) provides that the Attorney-General of the Transvaal shall act as tolegal matters in the Eastern Caprivi Zipfel, rather than the Attorney-General ofSouth West Africa.These changes appear to follow naturally the transfer of the administration of theEastern Caprivi Zipfel from the territorial Administrator to the Minister of BantuAdministration and Development. 3/1_/ Act No. 39 of 1968, q.v. Some of the sections were incorporated in theConstitution Act, and one of these was subsequently rejealed by Act

No. 54 of 1968.?_ Now the South West Africa Division of the Supreme Court. / See UnionProclamation No. 147 of 1939.

- 168SOUTH-WEST AFRICA BANTU AFFAIRS ADMINISTRATION ACT No. 56of 1951, as amendedGeneralThis Act transferred the control of territorial "native afTairs" and "native-reserves" from Windhoek to Pretoria.Administration of native affairsSection 2 of this Act, now repealed, 1/ transferred to the then Minister of NativeAffairs (now the Minister of Bantu Administration and Development) theadministration of territorial native affairs. At that time they were under theJurisdiction of the territorial Administrator, acting under the "direction andcontrol" of the Governor-General.Transfer of native reservesSection 4 of the Act provided that all existing and future native reserves and fundsestablished for Africans or in connection with the administration of the reservesshould vest in the South Africa Native Trust (now called the South Africa BantuTrust).Section 5 provided that the State President may rescind any present or futurereservation of land in the Territory for the use and occupation of Africans,provided land of equal value is substituted therefore Land as to which areservation for the use of Africans is rescinded becomes "unalienated Stateproperty". 2/Prior transfer of Eastern Caprivi ZipfelA decade and a half previously, Union Proclamation 117 of 1939 (q.v.) hadalready decreed that the Eastern Caprivi Zipfel should be administered by theMinister of Native Affairs as of 21 July 1939.By Act 39 of 1968, section 1 (1). g/ Section 5 (2).

- 169 -South-West Africa Bantu Affairs Administration ActTechnical supplementGeneralThis statute was enacted the year after the National Party won its firstParliamentary elections since coming to power in 1948. Several of its provisionshave been repealed since the revocation of the mandate.Administration of native affairsSection 2, now repealed, effected the transfer of native administrationfrom Windhoek to Pretoria by amending the 1925 South-West Africa Constitution1/ (now entirely repealed) to that effect. Section 3 which is still in existence,makes necessary changes in existing legislation relative to native affairs to takeaccount of the transfer of administration by section 2.

The vesting of the administration of native affairs in the territorial Administratorhad itself been effected as recently as 199 g/ when matters as to which theterritorial Legislative Assembly was not competent to act 3/ were vested in theAdministrator.The repeal of section 2 by the 1968 Constitution did not cause any change in theadministration of native affairs. It could not cause the administration of territorialnative affairs to revert to the Administrator under the 1925 Constitution, since the1925 Constitution was also repealed by the 1968 Cons-titution Act. A year laterthe 1969 South-West Africa Affairs Act V_ providedfor the administration of all matters over which the Legislative Assembly had nocompetence by the Minister of the appropriate Department of the Republic: in thecase of native affairs by the Minister of Bantu Administration and Development.Transfer of native reservesThe South Africa Bantu Trust was established by the Bantu (originally Native)Trust and Land Act. 5/ The State President is the sole trustee of the Trust. Thevesting of territorial reserves in the South Africa Bantu Trust was one of the actscited by the Applicants in the 1966 South-West Africa Cases 6/ beforethe International Court of Justice as constituting a unilateral change in theinternational status of the Territory./ Act No. 12 of 1925, amended by the addition of section 7 (l)his.By substitution of a new section 7 (1) in the 1925 Constitution Act by ActNo. 23 of 1949, section 5.V3 As defined in section 26 of the 1925 Constitution.No. 25 of 1969, section 19 (1).Act No. 18 of 1936, section 4, as amended.6/ South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa),Preliminary Objections, Judgment of 21 December 1962: I.C.J. Reports 1962,P. 319; and South West Africa, Second Phase, Judgment, I.C.J. Reports 1966,p. 6.

S.W.A. Bantu, T.S.- 1T0Section 4 of the 1954 Act provided that in appropriate cases funds would Test inthe South Africa Bantu Trust Fund, also created by the 1936 Act.For payments out of the South West Africa Account of the South AfricaConsolidated Revenue Fund into the South Africa Bantu Trust lund, see section.4 (5); 3/and also Appendix I to this digest.Section 5, as written, provides that the State President shall rescind the reservationof land for use by Africans by proclamation published in both the South Africanand South West African Gazettes. But it would appear that the effect of section 37(5) of the 1968 Constitution is to make publication in the South AfricanGovernment Gazette sufficient.It is not clear whether section 5, making land as to which a reservation for Africanuse is rescinded "unalienated State land," is intended to mean that such landbecomes part of South Africa: such an interpretation would, of course, makepossible the legal alienation of Namibia, piece by piece, to South Africa.

Africans prevented from owning landBy vesting the reserves in the South African Bantu Trust, section 4 effectivelyprohibits all Africans in the Territory from ever owning any land. The Trust ownsthe land in the reserves, and Africans have no rights in the "white area"./ Substituted by Act No. 25 of 1969, section 2, for the subsection previouslysubstituted by Act No. 46 of 1962, section 14.

- 171 -SOUTH-WEST AFRICA CONSTITUTION ACT No. 39 of 1968, as amended(Never legally in effect in Namibia)GeneralAs enacted in 1968, this statute constituted a simple consolidation of the 1925Constitution for South West Africa, as amended over the years. 1/ Just one yearlater, however, it was extensively amended ?/ to effectuate the legislative andadministrative "rearrangements" proposed in the Odendaal Plan. It should be readwith the South-West Africa Affairs Act of 1969.Limited to "white area"Although it does not so state, the 1968 Constitution in fact applies only to the"white area" in Namibia; to whites. and, in certain respects, to nonwhites in thewhite area.Government structureThe Constitution establishes a territorialAdministration very similar to those ofthe four provinces:A territorial Administrator, who is the chief executive officer; 3/An Executive Committee, composed of the Administrator (chairman) andfour members elected from the Legislative Assembly; V_/An elected Legislative Assembly, composed of 18 white members, with aterm corresponding to that of the South African Parliament; 21A South-West Africa Division of the Supreme Court. _/It also provides for a territorial Revenue Fund and establishes rules for withdrawalof moneys from it. [/Powers and functions of the Administrator (Administrator-in-Executive-Committee)Executive acts are tdken in the name of the Administrator, but generally executiveauthority vests in the Administrator-in-Executive-Committee. 8/The Act empowers the Administrator-in-Executive-Committee to administerall matters within the competence of the territorial government and to exercise_/ Act No. 142 of 1925.2/ By the South-West Africa Affairs Act, No. 25 of 1969, q.jr. i/ Section 2.Sections 4, 5 (substituted by Act No. 25 of 1969, section 9 (1)). y Sections 11,12 (1), 14 (amended by Act No. 13 of 1970).Section 33.V Section 31 (as amended by Act No. 25 of 1969, section 16).Sections 2 (1), 6 (1).

S.W.A. Constitution

- 172non-legislative powers and functions insofar as they relate to subjects within thejurisdiction of the territorial government. The Administrator-in-ExecutiveCommittee may delegate any of his powers or functions to the Administratoracting alone. j/The Act also grants the Administrator special powers in relation to revenuematters and to enactment and approval of ordinances. 10/Powers of the Legislative AssemblyThe Constitution defines the jurisdiction of the Legislative Assemblynegatively, i.e., by specifying the "scheduled" subjects reserved to Parliament, asto which the territorial legislature may not act. 1J All other subjects are within thecompetence of the Legislative Assembly, viz., education for whites; healthservices for all persons in the "white area" and environmental services for theTerritory as a whole; roads; local authorities, including the establishment oftowns; public works; personal income tax; licensing of businesses, motorvehicles, and entertainments; and all other matters not taken over by the Republic.12/Under the 1968 Constitution as first enacted the number of subjects notreserved toParliament was quite extensive. But section 1 of the South-West Africa AffairsAct of 1969 added 25 broad categories to the list of scheduled matters, leaving theLegislative Assembly, like the provincial Legislative Councils, with jurisdictionover local matters only.The Legislative Assembly is also subject to the following limitations: (i) it maynot originate or pass any appropriation ordinance appropriating funds or levyingtaxes unless the measure originated with or was introduced by the Administrator;(ii) all ordinances must be assented to by the Administrator or the State Presidentto become effective; and (iii) all ordinances may be overridden by the SouthAfrican Parliament at any time.Powers of ParliamentThe Act specifically provides that Parliament retains full powers (asgranted by the mandate) to legislate for the Territory "as an integral portion of theRepublic". It can exercise these powers - albeit unlawfully under international law-- to fmend the constitution and thus alter the division of powers between theRepublic and the Territory.Under the Constitution Act as it now reads Parliament has power tolegislate as to all subjects reserved to it in section 22 (1). It can also overrideterritorial ordinances dealing with subjects which, according to section 22 (1),remain within the competence of the Legislative Assembly. L4/2/ Section 6.LOJ Sections 23 (1), 25, 27-30, 32.11 Section 22 (1).J Odendaal Report, paragraph 232.1/ Sections 23 (1), 27, 28, 37 (1), (6). 1j Section 37 (1), (3), (4), (6).

S.W.A. Constitution- 173

D elimitation of electoral divisionsProvisions governing delimitation of electoral divisio-s for territorial Members ofthe South African House of Assembly in Cape Town as well as for Members ofthe Legislative Assembly in Windhoek are found in the 1968 Constitution Actrather than in the Electoral Consolidation Act. Section 10 (5) (d) is the keyprovision. It permits the election commissioners, who are supposed to createelectoral divisions containing equal mnumbers of voters, to increase or decreasethe number in any division by as much as 15 per cent.Powers of the State PresidentSection 38 (1) 15J provides that the State President can legislate forNamibia on any subject not within the jurisdiction of the Legislative Assemblysimply by issuing a proclamation in the South African Government Gazette. Hemay also grant or withhold his assent to territorial legislation which is reservedfor his decision by the territorial Administrator. 16/The State President has full powers of administration over the Territory except asto matters within the competence of the territorial Legislative Assembly. He maydelegate them to the Administrator. 17/Powers of territorial courtsSection 33 provides that only the South West Africa Division of the SupremeCourt, and not a magistrate's court, shall have jurisdiction in any matter in whichthe validity of an ordinance is at stake.Application of laws to the Eastern Caprivi ZipfelThe Act, which is itself expressly made applicable to the Eastern CapriviZipfel, L/ provides that neither Acts of Parliament nor territorial ordinances shallapply to that region unless they are expressly declared to be applicable thereto.19/LanguagesThe Act provides that official publications and the courts shall use both officiallanguages of the Republic. It makes the use of German optional in certain cases.20/Promulgation of South African legislationSection' 37 (5) provides that formal requirements as to promulgation of Acts ofParliament or sub-legislation under them which are to-apply to the Territory shallbe satisfied by publication in the South Afridan Government Gazette only.Substituted by Act No. 25 of 1969, section 17. 16/ Section 28.Section 37 (1), (2).SSection 40, substituted by Act No. 25 of 1969, section 18.2 Section 38 (5), substituted by Act No. 25 of 1969, section 17. 2o/ Sec. 34.

- 174 -South-West Africa ConstitutionCross-reference Table$ection(s)Subject23

'4567-9101112 13-20 21-24k5, 26 27, 28 29, 30 31, 32Discussed undler or referred toin'digest*Technical supplement "Application of laws to the Eastern Caprivi Zipfel""Government structure"DefinitionsAppointment of AdministratorPowers of Administrator Constitution of Executive Committee Election ofExecutive CommitteePowers of Executive CommitteeAdditional provisions as to Executive Committee Delimitation of electoraldivisions Constitution of Legislative Assembly Qualifications of AssemblyMembers Legislative Assembly procedure, miscellaneous provisionsPowers of Legislative AssemblyDraft ordinances Assent to ordinances Ordinances, miscellaneous Finance* See also the technical supplement under the same or related rubric.(repealed)"Government structure"Technical supplement, "Government structure""Powers of Administrator-in-ExecutiveCommittee"Delimitation of electoral divisions""Government structure""Government structure" and Electoral Consolidation Act"Powers of Legislative Assembly" and"Powers of Administrator" "Powers of Administrator" "Powers of Administrator"and "Powers of State President""Government structure" and South-West Africa Affairs Act of 1969

S.W.A." Constitution- 175 -Section(s) 33335 36 3738 (1). (2).(6), (7) 38 (3), (4) 38 (5)391.0Subject

Validity of ordinances Languages used in official matters Consultation byRailways and Harbours Board Walvis BayRight to administer and legislate for TerritoryLegislative powers of State President State President's powers as to EasternCaprivi ZipfelSpecial provisions forEastern Caprivi Zipfel Savings clause Application of ActRepealers; short titleDiscussed under or referred toin digest"Powers of territorial courts" "Languages""Application to Walvis Bay" "Powers of Parliament", "Powers of the StatePresident", and "Promulgation of South AfricanLegislation""Powers of the State President"(repealed)"Application of laws to Eastern Caprivi Zipfel""Application of laws to Eastern Caprivi Zipfel" and "Application to RehobothGebiet"Other acts repealed by section 141, 42

- 176 -South-West Africa Constitution ActTechnical supplementLimitation to the "white area"The administration of "native reserves" was transferred to the Minister of BantuAdministration and Development by the South-West Africa Bantu AffairsAdministration Act. I/ The power to legislate as to "natives" was retained byParliament when the 1925 Constitution was adopted. Control over Africans andtheir land continues in the South African government, with certain pro formafunctions bestowed upon the Africans themselves by the Development of Self-Government for Native Nations in South-West Africa Act. _/There are a few exceptions to the general proposition that the 1968 constitutionapplies to the white area only: thus under its provisions the territorial governmentis responsible for environmental services for the Territoryas a whole.Government structureThe territorial Administrator is appointed by the State President.Detailed regulations governing the election of members of the ExecutiveCommittee of the Territory are found in South African Government Gazette, No.2709, 15 May 1970, Government Notice No. R. 724.Although the 1968 Constitution does not directly require Members of theLegislative Assembly to be white, it does require that they be "qualified to beregistered as a voter in the territory ..."3_. The qualifications for voters, found inthe Electoral Consolidation Act, / restrict the franchise to whites.

The term of the Legislative Assembly is five years, save that it shall be dissolvedsooner if Parliament is dissolved (Parliament has a maximum fiveyear term).Section 14 (1) was amended In 1970, to keep the Legislative Assembly term inphase with Parliament when Parliament was dissolved a year before its normalexpiration.Powers and functions of the AdministratorSection 6 (2) grants the Administrator virtually unlimited administrative powers,insofar as they relate to matters within theterritorial government's jurisdiction.The phraseology is: "the powers, authorities and functions (other than legislativepowers) which, immediately prior to the date of the constitution of the firstExecutive Committee Li.e., before the enactment of the 1925 South West AfricaConstitution Act, which creaed the Executive1 Act No. 56 of 1954 (q.v.).g2 Act No. 54 of 1968 (q.v.).3 Section 12 (1).Act No. 46 of 1946 (q.v.)

S.W.A. Constitution, T.S.- 177CommitteeJ were vested in or exercised by the Administrator ...". At that timethe Territory was under quasi-martial law and largely ruled by theAdministrator, acting for the Governor-General.Beyond this, the Administrator's Legislative Powers Ordinance, 5/ grantsthe Administrator power to legislate by proclamation as to "matters of urgency".Powers of the Legislative AssemblySection 22 (1) of the 1968 Constitution, as originally enacted, reserved toParliament legislative powers over the following subjects:"native affairs" (the definition was subsequently both broadened andmade more specific by amendment by Act No. 25 of 1969, section 14 (a));civil aviation;railways and harbours;South African public employees serving in the Territory;courts (broadened to include the entire administration of justice byamendment in Act No. 25 of 1969, section 14 (b));postal, telephone, and telegraph services (radio services subsequentlyadded by Act No. 25 of 1969, section 14 (c));control of any military organization or police force in the Territory;operation of South African Defence Force within the Territory;immigration into the Territory;customs and excises; andcurrency and banking.This'list corresponds substantially, but not completely, with the original list ofreserved subjects in the 1925 Constitution, which was found in section 26. Section27 of that Act contained a list of subjects over which legislative power wastemporarily withheld from the territorial government; that section was repealed byAct No. 23 of 1949, section 17. Over the years a certain number of changes were

made in section 26 of the 1925 Constitution, but its provisions as of the date of itsrepeal were incorporated directly into section 22 (1) of the 1968 Constitution.The 25 broad categories of subjects added to the reserved list in 1969 are found inthe present section 22 (1) (L) - (a). They inilude: arms and-1- Ordinance No. 20 of 1952 (q.v.).

S.W.A. Constitution, T.S.- 178ammunition; prevention of cruelty to animals; prisons and prisoners; water affairs;social welfare; monuments, archives, museums; mining and minerals; forestry,except conservation; matters affecting Coloureds fincluding Nama) and theRehoboth Community; companies and corporations; tralemarks, patents, designsand emblems; weights and measures; explosives; fish'and fishing, exceptlicensing of fishing boats; supplies and facilities for South African governmentdepartments in the Territory; control of films, publications and entertainments;matrimonial matters; labour relations; income and certain other taxes; stock andproduce thefts; riotous assemblies and racial hostility; immorality; andregistration of births, deaths and marriages.For the powers of provincial councils, see section 84 of the Republic ofSouth Africa Constitution Act 6/. A direct comparison between the powers of theprovincial councils and those of the Legislative Assembly is not easy to makesince the South African Constitution specifies the powers of the provinces andallots all remaining powers to the central government, whereas the SouthWestAfrica Constitution Act lists the powers reserved to Parliament and provides byimplication 7/ that all other unspecified powers are retained by the territorialgovernment. The powers retained by Windhoek are spelled out, however, in theproposals, adopted without substantial change, of the "Odendaal Report" 8/ and inSouth African government's response to it. 9/The powers of the Legislative Assembly as to taxation were weakened by therepeal, by section 15 of Act No. 25 of 1969, of section 23 (2) and (3) of theConstitution as enacted in 1968.Powers of ParliamentIt should be noted that the power claimed in section 37 (1) to legislatefor the Territory "as an integral portion of the Republic" derives from the mandatealthough the South African government claimed in the South West Africa Cases10/ that the mandate no longer subsists.Delimitation of electoral divisionsFor the equivalent provisions in South Africa, see sections 42 and 43 ofthe Republic of South Africa Constitution Act: Section 43 (3) (g) also contains aprovision allowing delimitation of districts containing as many as 15% more thanor 15% less than the voter "quota" (i.e., the total number of white voters dividedby the number of Members to be elected from the Republic). In certaincircumstances, the electoral commission may reduce the number of voters to amere 70% of the quota. This compares with the 2-3% variation which isconsidered sufficient in other countries to take account of sparse settlement of

certain areas, respect for political and community entities, and other nonnumericalconsiderations which enter into such delimitations.6/ Act No. 32 of 1961, as amended. L/ See section 21.Report R.P. No. 12/1964, paragraph 232.Memorandum: Decisions by the Government on the Financial and AdministrativeRelations between the Republic and South-West Africa," III, paragraph 48.l/ South-West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa),Preliminary Objections, Judgment of 21 December 1962: I.C.J. Reports 1962, p.319; and South West Africa, Second Phase, Judgment, I.C.J. Reports 1966,p. 6.

s.W.A- Constitution, T.S.- 179By decreasing the numbers of voters in electoral divisions where the populacesupports the party in power and by increasing the number of voters per division inareas where the opposition is strong, the "ins" can preserve a parliamentarymajority unless the opposition receives a l ndslide, not just a jajority, of the votescast.Powers of the State PresidentAs originally enacted, section 38 (1) required that proclamations of the StatePresident be published in both the South African and the South West AfricanGazettes, but the sub-section substituted by the 1969 South West AfricaAffairs Act deleted the requirement as to the territorial Gazette. This change is inline with section 37 (5) which deals with promulgation of South Africanlegislation (see below).Proclamations of the State President may not, of course, be repugnant toany Act of Parliament. i] Section 38 (6) and (7) provide for the prompt tabling ofall proclamations and for parliamentary action thereon if they are disapproved.For substantially similar powers of the State President to legislate byproclamation for Namilia, see the 1969 South-West Africa Affairs Act. Thepowerlapsed as of the end of June 1971.For the power of the State President to determine whether a subject falls under the"reserved" list and is therefore to be administered by a South African departmentof state, see the 1969 South-West Africa Act.Powers of the territorial CourtsMost provisions relating to territorial courts are found under the variousstatutes creating and regulating the courts, not in the 1968 Constitution.South Africa generally follows the British rule that the courts cannotpass on the validity of Acts of Parliament. 1_J However, courts must determinethe validity of legislation by subordinate legislative bodies, such as the territorialLegislative Assembly, since this may be held ultra vires.Application to Walvis BaySection 36 of the 1968 Constitution re-enacts section 43 of the 1925 ConstitutionAct as of the date of its repeal. Section 43 of the 1925 Act was originally enactedas section 43 (a), but when subsection (b) was repealed 13/ section 43 (a) wasrenumbered section 43.

This provision is supplemented by Proclamation 30 of 1922. Thecontinuing practice which treats Walvis Bay as part of the Territory for virtuallyall purposes forms the basis for asserting that, according to international law, theWalvis Bay enclave forms an integral part of the Territory of Namibia and nolonger remains part of South Africa. iJ// Section 38 (2).1J But see Harris v. Minister of the Interior, 1952 (2) S.A. 428 (A.D.),overruled by Act No. 9 of 1956, section 1. 13J By Act No. 38 of 1931, section 6(7).In this connection, see R. v. Akkermann, 1954 (1) S.A. 195 (S.W.A.); butcf. also R. v. Offen, 1935 A.D. 4.

S.W.A. Constitution, T.S.- 180Application of Laws to the Eastern Caprivi ZipfelBefore substitution by Act No. 25 of 1969, section 18' section 40 contained adefinition of the Eastern Caprivi Zipfel which referred tb the definition containedin Proclamation No. 147 of 1939, q.v. The definition, which was removed fromsubstituted section 40, was added to section 1 (2) by Act No. 25 of 1969, section7.Section 38 (5), which dealt with the application of legislation to theEastern Caprivi Zipfel, was replaced by Act No. 54 of 1968, section 18 (1) (b).That subsection was in turn replaced by Act No. 25 of 1969, section 17.Application to the Rehoboth GebietS. v. Bock, 12/ held that South African legislation which applied to theTerritory also applied automatically to the Gebiet. In so doing, it held invalid theexisting interpretation of clauses 2-4 of the agreement between the Administratorand the Gebiet appended to territorial Proclamation No. 28 of 1923 (q.v.). Thatinterpretation limited the laws in effect in the Gebiet to those extended to it by theAdministrator.The provision which applied the 1968 Constitution to the Rehoboth Gebiet wassubsequently exciseapparently because S. v. Bock was held to have made itsuperfluous. 16/Promulgation of South African legislationSection 37 (5) reenacts section 44 (5) of the 1925 Constitution as it read Justbefore repeal. Section 44 (5), as added to the 1925 Act by Act No. 23 of 1949,section 22, provided that no Act of Parliament should be effective in the Territoryunless it had been published in the Territory's Official Gazette. This subsectionwas in turn substituted by Act No. 55 of 1957, section 4, which introduced theclause reenacted by the 1968 Constitution.It would appear that the reason for providing, in effect, that publication in theSouth African Gazette was sufficient promulgation to put into effect in theTerritory South African statutes, and sub-legislation intended to apply thereto,was to avoid the kind of challenges that had been made earlier on the ground thatthe government had failed to meet its own requirements as to proper promulgation

or other formalities. In this connection, see Faul v. S.A. Railways & Harbours 17/and van Rooyen v. S.A. Railways & Harbours. 18// 1968 (2) S.A. 658 (A.D.), aff'g 1968 (1) S.A. 370 (S.W.A.). Bock overruledUniversal Distributors v. Dickson, 1949 (4) S.A. 331 (p.W.A.)i_ By substitution of a new section 40 by Act No. 25 of Iy69, section 18. L_1949 (1) S.A. 630 (S.W.A.)18/ 1949 (1) S.A. 640 (S.W.A.).

- 181 -SUPPRESSION OF COMMUNISM ACTko. 44 of 1950, as amended(Not legally in effect in Namibia)iGeneralThis Act provides the basic mechanisms by which opponents of the South Africangovernment's racial policies, and persons who aid and succour such opponents,may be eliminated from public life and penalized administratively, in virtually allcases without recourse to the courts.It forms one legal whole with the Unlawful Organizations Act, 1/ which wasenacted 10 years later to plug certain loopholes in the earlier act. The two actsshould be read together.Definitions: "communism" and "communist"All the subsequent provisions of the Act depend upon the extremely broadand vague definitions of "communism" and "communist" in section 1."Communism" is defined 2/ as virtually synonymous with advocating socialchange, even by peaceful means or through the United Nations, if any disorder,threat or illegal act is involved in the advocacy. /"Objects of communism", as used in the Act, include not only the ultimate objectsin the form of the establishment of a communist state, but also allintermediate or ancillary objects, such as universal adult suffrage or freeeducation for Africans. V An organization may be declared unlawful, or a persondeemed a communist, for advocating such objects. If an organization is declaredunlawful under the Act or under the Unlawful Organizations Act, then its objects(however lawful) become themselves "objects of communism," and any person ororganization advocating these new objects is in turn in jeopardy, and so on bygeometrical progression. 5-/A "communist", by definition insection 1 (1) (iii) 6/, is anyone whoever was a communist or who is deemed by the State President to be acommunist.It is common in South Africa to distinguish between communists and "statutorycommunists", the latter being persons deemed communists who are admittedlyopposed to the Communist Party and to the ultimate objects of communism.Unlawful organizationsSection 2 declares the Communist Party of South Africa unlawful andempowers the State President to declare any other organization unlawful if itadvocates any of the objects of communism. Only three organizations have been'banned" under the section in the two decades since its Inactment. However, the

State President has declared many others unlawful under tfe UnlawfulOrganizations Act, which was enacted to apply to certain organizations which thecourts found not subject to section 2. 1/ No. 34 of 1960. 2/ Section 1 (1)(ii)./ See R. v. Sisulu, 1953 (3) S.A. 276 (A.D.).See S. V. Arenstein, 1967 (3) S.A. 366 (A.D.)./ See Act No. 34 of 1960, section 2, and S. v. Nokwe, 1962 (5) S.A. 71 (T)6/Substituted by Act No. 50 of 1951, section 1 (a).

Suppression of Communism- 182Section 3 spells out certain consequences of declaring an organizationunlawful: All persons are forbidden to be officers or members, to possess anyindicia of membership, or to take part in any of its activities Section 11 4reates anumber of offences, all of which involve violations or the prohibitions eT section3; they have been ruthlessly employed to attempt to break up any .esurgence ofANC or PAC loyalties or activies (the ANC and PAC-having been Teclaredunlawful under the 1960 Act).In addition, the funds and property of the unlawful organizations are vested in agovernment "liquidator." He is also charged with preparing a list of all officers,office-holders, members and "active supporters" of the organization-who arereferred to collectively as "listed persons". Listed persons are subject to most ofthe restrictions discussed in the following paragraphs.Restrictions on "communists"Any person who is listed or who is a communist under the definition of section1 (1) (iii) or who is believed by the Minister of Justice "likely" to advocate any ofthe objects of communism may be subject to written "banning orders", which areissued without notice or hearing and are not subject to any judicial review. Suchorders may prohibit him or her from being in a designated place or type of place(e.g., a building in which any union has an office) or being outside a specifiedplace (e.g., a magisterial district or, in the case of "house arrest", his home) orfrom receiving visitors or communicating with other banned persons. ,/Section 10 (1) (a) also empowers the Minister of Justice to prohibit a person fromdoing acts prohibited under other provisions of the Act. Thus the term "banningorder" is applied to orders prohibiting persons from, inter alia, doing thefollowing acts, which are prohibited by virtue of other sections of the Act.being an officer or member of, or participating in the activities of, allor specified classes of lawful organizations; 8/attending all or specified types of gatherings or meetings; 9/being nominated, elected, or serving as an elected legislative official; LO/practicing law, whether as attorney (solicitor), advocate (barrister), notary,or conveyancer. Lj1 Section 10 (i) (a), substituted by Act No. 76 of 1962, section 8 (a). /Sections5.(1) (amended by Act No. 50 of 1951, section 4 (a Act No. 15 of- 1954, section 8, and Act No. 76 of 1962, section 3); and 5ter (added by ActNo. 24 of 1967, section 1).

/ Section 9 (1), substituted by Act No. 76 of 1962, section 7 (S). See "Ban onattending gatherings" below.10/ Sections 5 (1)bis (added by Act No. 50 of 1951, section 14 b),and amended byAct No. 15 of -54, section 3 (S); and 5bis (added by Act No. 15 of 1954,section 4).1/ Section 5quat, added by Act No. 24 of 1967, section 2.

Suppression of Communism- 183Banning orders typically require the banned person to report regularly to thepolice (at daily or weekly intervals). 12/Banning orders cannot be appealed to the courts.Violation -- even unintentional -- of a banning order is punishable by 1-3 years'imprisonment. 13/ The courts do not look into the grounds for issuing a banningorder, but merely whether it has been violated. Under the election law any personconvicted of violating a banning order loses hisfranchise. L/Restrictions on the pressSection 6 empowers the State President, without notice or trial, to prohibit theprinting or dissemination of any publication that he is satisfied advocates anyobjects of communism or propagates the views of an unlawful organization.Section 6bis IV requires all newspapers to deposit a sum not exceedingR20,000 in order to obtain a certificate of registration, which is required forpublication. A paper forfeits its deposit if it is served with a prohibition orderunder section 6 -- a strong financial inducement to self-censorship.Section lOauin 16/ provides for listing in the Gazette the names ofexpatriates and others once resident in the Republic who in the opinion of theMinister of Justice advocated communism inside or outside South Africa. Section11 (&)bis 17/ makes it an offense to publish or reproduce a speech or writing ofany person who has ever been prohibited from attending a gathering or who hasbeen listed in the Gazette under section 10gUin.Ban on attending gatheringsSection 9 (1) LJ/ empowers the Minister of Justice, by written notice, toprohibit a person from attending all, specified types of, or specified gatherings atall or specified times and places. Section 11 (h) provides for up to three years'imprisonment for contravention of such a notice.L2 Section l~auat, added by Act No. 76 of 1962, section 9, and amended byAct No. 2 of 1972, section 3.13/ Section 11 (f), (f)bis (added by Act No. 15 of 1954, section 8 (a)), (L)ter(added by Act No. 76 of 1962, section 10 (1) (c) (h), (i) (amended byAct No. 76 of 1962, section 10 (1) (c)); 10 years under section 11 (d)Quat. L4Electoral Consolidation Act, No. 46 of.1946, section 6 (1), substituted byAct No. 99 of 1969, section 2. See digest of that Act, "Restriction offranchise to 'non-communist' whites".i_./ Added by Act No. 97 of 1965, section 2 (b), as substituted in part andamended

in part by Act No. 2 of 1972, section 2 (1) (a) - Cd). 16/ Added by Act No. 97 of1965, section 4. 17/ Substituted by Act No. 97 of 1965, section 5 (b). L8Substituted by Act No. 76 of 1962, section 7 (a).

Suppression of Communism- 184Section 9 (3) 19/ empowers the Minister to prohibit the holding of any or allgatherings under penalty of imprisonment of up to three years. 20/CrimesSection 11 defines 22 crimes under the Act, with penaltieb ranging from a fine ofR400 ($450) or 1 year in prison up to death.The most serious crimes are advoacating the achievement of the objects ofcommunism by foreign or international intervention 21/ (e.g., advocatingeconomic sanctions against South Africa to compel it to end apartheid) andundergoing guerilla training. 22/ Both of these offences, which were not listed inthe statute as first enacted, were made retroactive to 1950; and both apply to anyperson who is, or ever was a resident of South Africa.Two major catch-all crimes are defined in the Act: performing acts calculatedi tofurther any object of communism; 23/ and advocating any of the objects ofcommunism. 24/ Both are punishable by 1-10 years' imprisonment. The samepenaltjy is exacted for violating the prohibition in section 3 against havinganything to do with an unlawful organization. 25/Evidence and presumptionsVarious presumptions, found mostly in section 12 of the Act, have the effect, interalia, of shifting the burden of proof onto defendants tried for offences under theAct and of making it difficult for any person, whether in a civil or criminalproceeding, to defeat allegations that he is a communist.TrialsThe Act permits the trial of unlimited numbers of defendants together, whereverthe prosecution chooses to set the trial. 26/Application to NamibiaThe Act is purportedly made applicable to the Territory and the Eastern CapriviZipfel by a provision which postdates the revocation of the mandate. 27/19/ Added by Act No. 76 of 1962, section 7 (b). 20/ Penalty established bysection ll.(K). 21/ Section 11 (b)bis, added by Act No. 15 o: 1954, section 8 (a).22-/ Section 11 (b)ter, added by Act No. 76 of 1962, section 10 rI) (c). 23/Section 11 (a). 24/ Section 11 (b).Section 11 (-C).6 Section 12 (6), added by Act No. 37 of 1963, section 6, 27/ Section 18(substituted by Act No. 62 of 1966, section 5!(l). The effectivedate of Act No. 62 of 1966 ws 4 November 1966. The earlier section 18, whichwas replaced, had applied the Act to the Territory, but there had been smOBdoubt as to the applicability of amendments to the Territory.

- 185 -Suppression of Commurnsm Act

Technical supplementGeneralThe Suppression of Communism and Unlawful Organizations Acts are analyzedin Mathews' "Law, Order and Liberty in South Africa" (see Bibliographic Note,Part IV).Although the two acts should be read together, it should be noted that theUnlawful Organizations Act has not been made applicable to the Eastern CapriviZipfel.Definitions: "Communism""Communism" is defined as "the doctrine of marxian socialism ... or any relatedform of that doctrine ... /designed to promote its7/ fundamental principles ... inparticular, any doctrine or scheme"(a) which aims at the establishment of a despotic system of governmentbased on the dictatorship of the proletariat ... or"(b) which aims at bringing about any political, industrial, social oreconomic change within the Republic by the promotion of disturbanceor disorder, by unlawful acts or omissions or by the threat ...LthereofL or"(c) which aims at bringing about ... /such7 change within the Republic... under the guidance or in co-operation with any foreign governmentor any foreign or international institution ... one of whose purposes ...is to promote ... within the Republic ... any political, industrial, social or economicsystem ... Llike that/ described in paragraph (a);or*"(d) which aims at .4. /encouraging/ hostility between ... /whites andnonwhites calculated to further the achievement of any objectreferred to in paragraph (a) or (b)."Lawful strikes or lock-outs are specifically excluded by section 1 (2).R. v. Sisulu, referred to in note 3 above, involved a criminalprosecution under section 11 (b) for advocating the achievement of objects ofcommunism, as defined in section 1 (1) (ii) (b), i.e., inter alia, a non-racial societyto be achieved by the unlawful but non-violent refusal to carry passes. TheAppellate Division held that the prosecution did not have to establish the objectsof communism as set out in the first paragraph of the definition and

Suppression of Communism, T.S.- 186prove that the defendant's acts furthered such objects -- a burden which, it held,the prosecution could seldom sustain in such proceedings. The Court thereforefound that Parliament had intended that "the aims set out in paragraphs (a), (b),(c) and (d) were for the purposes of this Act to be regarded as objects ofcommunism and were to be suppressed . VThe Court further held in the Sisulu case that paragrah (b) covered anyunlawful act aimed at producing any change even though there was no violenceand none intended.

As to the objects of an unlawful organization becoming themselves unlawfulobjects (i.e., equated to objects of communism), the Transvaal Supreme Courtsupplied an example in S. v. Nokwe, 2/ a prosecution for performing actscalculated to further an object of communism:"Section 11 (a) read as applying mutatis mutandis to the LA-frican National7Congress under 1960 Act would therefore read as 'any person who performs anyact which is calculated to further the achievement of any of the objectsof the African National Congress, while it remains an unlawful organization interms of Act No. 34 of 1960, shall be guilty of an offence ...' 3/Definitions: CommunistAmong the persons named as communists by the State President were thelate Edward Roux, professor of botany at Witwatersrand University when bannedand author of "Time Longtr than Rope," who had left the Community Party in1936, and E.S. ("Solly") Sachs, former Secretary of the militant multiracialGarment Workers Union, who was expelled by the Party in 1931.Unlawful organizationsIn addition to the Communist Party of South Africa, three other organizationshave been declared unlawful under section 2: The Congress of Democrats 1-/, theSouth African Communist Party 5/, and the South African Defence and Aid Fund./The ANC and the PAC were declared unlawful under the Unlawful OrganizationsAct. The ANC had, in effect, been cleared of "communism" by the acquittal of allthe defendants '(largely ANC members) in the notorious 1956 "treason trial".Section 7 provides for the investigation of suspected organizations, and section 8deals with the custody and correction of lists made in connection with unlawfulorganizations.1 At page 289.2 1962 (3) S.A. 71 (T).At page 72.Proclamation No. 67 of 1962, Government Gazette No. 209, 30 March 1962.Proclamation No. R. 38 of 1966, Government Gazette Extraordinary No. 1302,4 February 1966.6/ Proclamation No. R. 77 of 1966, Government Gazette Extraordinary No. 1360,30 March 1966.

Suppression of Communism, T.S.- 187Violation of prohibition on participating in an unlawful organizationSection 11 (c) makes contravention of section 3 (1) (a) Iprohibitingparticipation in an unlawful organization) illegal and penalixes the offence by 1-10 years' imprisonment. ANC and PAC adherents have bee-tried (and generallyconvicted) under section 11 (c) for such simple acts as having a photo of ANCleaders in the living room, keeping an organization badge on the person, orholding a meeting at home.The prosecution has used various presumptions created by section 12 to

put the burden of proof on the defendants in such trials. For example, section 12(1) 7/ requires the defendant to prove that he is not a member of an unlawfulorganization if he ever attended any meeting of that organization or advocated anyof its purposes. And section 12 (4) 8/ requires the defendant to prove that he is nota member of an unlawful organization if any document apparently connected withthat organization contains anything suggesting that he was a member.The government has also prosecuted alleged ANC and PAC supporters more thanonce for a single act held to constitute more than one offence. For example, in thewell publicized case of Dr. M. Pather he was convicted first of allowing hishouse'to be used for a meeting of an unlawful organization. After serving hissentence he was charged, on the basis of the same act, of allowing his house to beused for the collections of subscriptions for the ANC 9/. The Rand Daily Mail of22 July 1965 reported that Africans of the Eastern Cape who had been acquittedin one trial were rearrested and tried again on virtually the same charges; threeAfricans were being tried for the fourth time.Banning ordersBanning has been used in many instances to hamper the activities ofpolitical opponents of the National Party, such as leaders of the nonwhite tradeunion movement and organizers of the Liberal Party. It has also been used topunish administratively persons accused of political offences: thus personsacquitted of offences under the Suppression of Communism Act have beenbanned as they left the courtroom; others have been banned after completion oftheir sentences for relatively minor offences.The most flagrant example of punishment by banning involved enactment of aspecial legislative banning order, section 10 (1) (a)bis,lO/ popularly known as"the Sobukwe clause" since it was aimed specifically and exclusively at RobertSobukwe. It provided that a person convicted of certain political crimes might, oncompletion of his court-imposed sentence, continue to be detained in prison at thepleasure of the Minister of Justice if the Minister believed that hewas likely toadvocate communism. When this clause was allowed to lapse, and Sobukwe leftprison, he was immediately served with an ordinary banning order,I/ Amended by Act No. 50 of 1951, section 8 (a)._ Added by Act No. 15 of 1954, section 9 (b).9 Survey of Race Relations 1965 (Institute of Race Relations, Johannesburg,1966),p. 69.10/ Added by Act No. 37 of 1963, section 4 (a).

Suppression of Communism, T.S.- 88He sought and received an exit permit but was not allowed to avail himself of itsince his banning order prohibited him from leaving the magisterial district, andthe airport was in another district. 11/Banning orders now regularly prohibit banned persons frod belonging to anyorganization that prepares, prints, or publishes any publi~cation. They alsoprohibit them from teaching. Under section 5ter, 1/ banned and listed persons can

be prohibited, by a simple notice in the Gazette without personal service, fromhaving any contact with specific organizations or with all organizations of aspecific type; in the latter case it is up to the banned person to decide whether aparticular organization falls within the prohibited class. L/ Notice 2130 of 1962ih prohibited banned and listed persons from joining 36 named organizations,organizations which promote any of the aims of the named organizations, and anyorganization "which ... propagates, defends, attacks, criticizes, or discusses anyform of State, any principle or policy of ... a State, or which in any mannerundermines the authority of Governmentof a State."A person served with banning orders under section 10 (1) (a) is entitled to submitarguments against such orders to the Minister of Justice, but the orders continue ineffect while the Minister is considering the arguments. The answer is likely to bea routine recitation of the terms of the Act as justifying application of the section.Banning orders normally run up to five years and may be renewed repeatedly.Penalties for violating banning ordersThe number of persons banned at any one time appears to fluctuate froma couple of hundred to nearly a thousand. Orders expire, and occasionally namesare removed from the list; at the same time new names are published in theGazette. It is a heavy burden for a banned person to have to keep track of allpersons who are banned at any one time; it is particularly difficult for non-professional nonwhites who cannot afford to buy the Gazette and who are notused to consulting it. Nevertheless, banning orders typically prohibitcommunication with any other banned person, and it is a criminal offence toviolate a banning order. In this connection, section 12 (3) (a) _1/ establishes apresumption that if a banned person communicates with anyone whose name"corresponds substantially" to one on a list or published in the Gazette, the bannedperson knew that the name of the other person was on the list or published (andhence that it was illegal to communicate with him).While the courts have often been quite lenient in sentencing banned persons forunintentional violations of their banning orders (e.g., suspending all but a fewdays of a minimum year's mail sentence), there have been few acquittals on suchcharges.Ll Sobukwe v. Minister of Justice, 1972 (1) S.A. 693 (A.D.. L2/ Substituted byAct No. 24 of 1967, section 1, and further substituted inpart by Act No. 2 of 1972, section 1.13/ House of Assembly Debates (Hansard), 10 February 1967, col. 1031. 1/Government Gazette No. 154, 28 December 1962. IV Added by Act No. 2h of1967, section 3.

suppression of Communism, T.S.- 189In connection with the penalties for violation of banning orders, itshould be noted that section 6 (1) 16/ of the Electoral Consolidation Act, _/disfranchises all persons convicted under the Suppression of Communism Actwho are sentenced to imprisonment without option of a fine. Thus it would appear

that all persons convicted of violating their bannink orders are automaticallydisqualified, although their substantive offence rtay have been as minor asreporting an hour late to the police station, talking to one's banned fiance, or notrealizing that a group of three is a prohibited "gathering".Restrictions on the pressA newspaper must have a "clean record" (i.e., not have been served with aprohibition order) for five years to draw any interest on its deposit. The financialstringencies arising under this section have made it impossible for smallnewspapers not in sympathy with the government to survive.Banning attendance at gatheringsAn order under section 9 prohibiting a person from attending any gathering is abanning order, and a person who is served with such an order is subject to otherrestrictions discussed above.Orders banning attendance at gatherings have tended to become more restrictiveover the years, as have the courts' interpretations of them. Where once bannedpersons were, by court interpretation, allowed to attend social affairs, nowbanning orders tend to specify that attendance at social gatherings is alsoforbidden. And it has been held that as few as three persons constitute a"gathering". 18/CrimesSection 11 (b)ter reverses the normal burden of proof by providing that it shall beunlawful for a (present or past) resident to undergo training or obtain informationif he "fails to prove beyond a reasonable doubt that he did not undergo ...suehtrainng or obtain such information for the purpose of using it or causing it to beused in furthering the achievement of ... Lany of the objects of communism or ofan unlawful organization, including the commission of sabotage/."The full effect of this reversal of the burden of proof can only be understood byreading section 11 (b)ter with section 12 (1)ter. 1P/ The latter subsection providesthat if a person accused of an offence under section 11 (b)ter is proved to have leftSouth Africa illegally in terms of the Departure from the Union Regulation Act,20/ then it is presumed that he left South Africa for the purpose of undergoingsuch unlawful training. Since it is virtually impossible for an African to obtain apassport and leave the Republic legally, that presumption operates against nearlyall Africans who leave the country.L6 Substituted by Act No. 99 of 1969, section 2. U__7/ Act No. 46 of 1946.18/ S. v. Naicker, 1967 (4) S.A. 214, 218-9 (N). i9/ Added by Act No. 62 of1966, section 3.__/ Act No. 34 of 1955.

Suppression of Communism, T.S.- 190TrialsAny persons may be tried jointly if they are accused ot having committedany crimes under the Act, however different, at the same place and approximatelythe same time. Trials under the Act have frequently involved scores, not tens, of

defendants; and quite often the interests of some of the defendants are contrary tothose of others.Section 12 (6) (b), without overtly destroying the principle of trying persons nearthe scene of the alleged crime, in fact totally subverts it by providing that thealleged offence is deemed to have been committed "where it actually wascommitted and also at any place where the accused happens to be ". Thus EliaserTuhadaleni and his fellow Namibians could have been, in terms of this section ofthe Act, tried "properly" in Pretoria (where they had been detained) if they hadbeen charged under this Act.

- 191 -SUPRM4E COURT ACTNo. 59 of 1959, as amendedGeneralThis Act consolidated and repealed much of the existing legislation relating to theSouth African Supreme Court and to the administration of justice in the Territory.It deals with the constitution of the Court; relations among its various divisions;judges of the Court; proceedings in the Court; appeals to the Court; trial matters;officers of the Court; process of the Court; rules of theCourt; and miscellaneous matters.South West Africa DivisionSections 1 and 2 and Schedule 1 make the South West Africa Supreme Court(formerly the High Court of South West Africa) a division of the South AfricanSupreme Court. Its jurisdiction extends to the entire Territory except theEastern Caprivi Zipfel. Jurisdiction over the latter had previously been transferredto the Transvaal Provincial DiviRion by the South-West Africa AffairsAmendment Act.1/Appointment of Judges of the South West Africa DivisionThe requirement in the original version of section 10 (1) (c), that theState President consult with the Administrator of the Territory before appointing ajudge to the South West Africa Division, was abolished by amendment in 1970. /Appeal from Judgment or order of South West Africa DivisionAppeals from a civil judgment or order of the South West Africa Division godirectly to the Appellate Division. VApplication to the TerritorySection 15 (1) makes the Act applicable to the Territory.Xj Act No. 55 of 1951, ?j Act No. 1 of 1970, 31 Section 20 (1) (a),section 4. section 1 (a).(k).

- 192 -Supreme Court ActTechnical supplementAppointment of judgesAct No. 41 of 1970, section 1 (_), substituted a new oath of office for judges ofthe Supreme Court concerning the decision of cases "in accordance with the lawand customs ... of the territory of South West Africa". Thel. change was technical,

to express correctly and make properly applicable that provision, which had beenbadly phrased in the original.Appeal from judgmentAppeals from judgments or orders of single judges in the other provincialdivisions and in local divisions go to the full court of the provincial division.Application to TerritoryApplication of the Act to the Eastern Caprivi Zipfel is an academic matter in viewof the earlier law transferring jurisdiction to the Transvaal Provincial Division.

- 193 -TERRITORIAL WATERS ACTNo. 87 of 1963GeneralThis Act is designed to extend the territorial waters of South Africa beyond thetraditional three-mile limit.Section 2 declares that the territorial waters extend to six miles.Section 3 gives the gbvernment the right to control fishing within 12 miles,an expanse termed the South African "fishing zone". Relevant South African lawsare to apply within these limits. /The Act also provides that the continental shelf shall be deemed part of theRepublic for purposes of exploitation of natural resources and the application ofcertain South African laws. 2/Application to NamibiaWithout so stating explicitly, the Act in effect defines South Africa's territorialwaters, fishing zone, and continental shelf as including coastal waters and the sea-bed off Namibia. Section 1 defines "the Republic" as including the "territory ofSouth-West Africa", and section 8 makes the Act applicable to the Territory.Sections 4, 5. Section 7.

- 194 -Territorial Waters ActTechnical supplementGeneralAll references are to nautical miles.Section 6 determines how the six and 12 mile limits (measured from lowwatermarks) shall be ascertained where the coast line is indented.Section 7 provides that the continental shelf is defined by the Convention on theContinental Shelf signed at Geneva on 29 April 1958, or by such laterconventions on the subject as South Africa shall ratify and become a party to. Forpurposes of laws applying to adjoining parts of the Republic, section 7 providesthat the continental shelf shall be treated as unalienated state land.Application to NamibiaFor obvious reasons this Act is not made applicable to the Eastern Caprivi Zipfel.Implications relating to the Sea Shore Act, No. 21 of 1935, as amendedAlthough the Sea Shore Act of 1935 is not made applicable to Namibia, it doesdefine the "sea" and by implication the "sea shore" in section 1 in terms of the

"territorial waters of the Union". These definitions are now implicitly amended torefer to the territorial waters of the Republic -- which are defined in the TerritorialWaters Act. It is possible, therefore, that a South Africancourt would find that the "sea" and the "sea shore" as mentioned in the Sea ShoreAct include the sea and the sea shore off Namibia.Section 2 of the Sea Shore Act vests ownership of the sea and the seashore, as defined in the Act, in the Governor-General (now the State President),except as lawfully alienated.

- 195 -TERRORISM ACTNo. 83 of 1967(Never legally in effect in Namibia)generalThis Act creates a new crime of "terrorism" (literally "participation interroristic activities") and provides for the indefinite detention for questioning bythe police of persons suspected of terrorism."Terrorism" defined: commission of any act with intentSection 2 (1(a) defines the first of three alternative forms of terrorism;commission of "any act" anywhere in the world "with intent to endanger themaintenance of law and order in the Republic ...".Section 2 (2) establishes a presumption against any person accused of terrorismundersection 2 (11 (_). If the accused's act "had or was likely to have any of ...Ltwelve listed/! results", then the intent to endanger the maintenance of law andorder is presumed unless the accused proves beyond a reasonable doubt that heor she did not intend apy of such "results". The results include (in summaryform):(a) hampering the miantenance of law and order;(b) promoting an objective by intimidation;(c) promoting general disturbance or disorder;(d) prejudicing any industry or undertaking or production or distributionof commodities or foods;(e) aiding insurrection or forcible resistance to South African or territorialauthorities;(f) encouraging any political objective or social or economic change byforce or violence or under guidance of or in co-operation with any foreigngovernment or foreign or international body or institution;(g) endangering or seriously injuring any person;(h) causing financial loss to any person or to the State; (i) encouraging hostitilitybetween whites and nonwhites;(j) endangering public utilities and their services, public health or safety,or postal, telecommunication, and/or radio services or installations;(k) obstructing air, land, or sea traffic; or(1) "embarrassing the administration of the affairs of the State".Terrorism: undergoing trainingSection 2 (1) (b) defines an alternative form of terrorism: undergoing any

training anywhere which could possibly be useful to any person intending toendanger the maintenance of law and order.

Terrorism- 196Once an accused has been connected with training of such a sort, he or she mustprove beyond a reasonable doubt that he or she did not undergo such training "forthe purpose of using it or causing it to be used to commit any act likely to haveany of the results ... Llisted in the discussion of the first form of terrorism/" L/anywhere in South Africa.Terrorism: possessing explosives or firearmsSection 2 (1) (S) defines a third form of terrorism: possessing anyexplosives, ammunition, firearms, or "weapons" unless the possessor can provebeyond a reasonable doubt that "he did not intend using such ... Fobject to commitany act likely to have any of the results ... Llisted in the discussion of the firstform of terroris_/" ?/ anywhere in South Africa.Harbouring or concealing terroristsSection 3 makes it an offence, punishable as for terrorism, to harbour, conceal, orin any way assist a person who the accused had reason at the time of his allegedoffence, to believe was a terrorist, or was a person who had committed any actwhich, although not constituting terrorism, was likely to have any of the 12"results" in section 2 (2).Prosecution must be authorized by the Attorney-GeneralSection 8 provides that no prosecution shall be commenced under the Act withoutthe written authority of the Attorney-General.PenaltyThe penalty for terrorism is the same as for treason: death by hanging orimprisonment for not less than five years. 3/DetentionSection 6 (1) empowers any high ranking police officer to arrest any personsuspected of being or having aided a terrorist or having withheld informationabout a terrorist and to have him detained for interrogation anywhere in SouthAfrica. The detainee may be held until the Commissioner ofPolice is "satisfied" that he has "satisfactorily replied to all questions at the saidinterrogation or that no useful purpose will be served by his detention ...". /Subsection (5) forbids a court to order the release of a person detained under thissection.1 Emphasis added.?J Emphasis added.I Section 2 (1).Emphasis added.

Terrorism- 197Subsection (6) provides that detainees shall be held in solitary confinement andthat no one except police and prison officials shall have access to them, except

that, under subsection (7) a magistrate may visit such a detainee in private at leastfortnightly "if circumstances sa: permit". Documents as evidenceSection 2 (3) makes any document connected with any organization with whichthe accused is connected admissible in evidence against him and provides that itconstitutes proof of its contents. Location of trialSection 4 (1) provides for the trial of persons who allegedly committed terrorismoutside the Republic. Subsection (2) empowers the Minister of Justice todetermine where terrorism trials shall be held without regard to the site of thealleged crime.Trial procedureSection 5 (a), (d), (e) / provides that a person accused of terrorism shall be triedsummarily without first undergoing a preparatory examination, under theprocedure prescribed for magistrates' courts, although the trial is before theSupreme Court. Subsection (S) provides that persons accused under the Act maybe tried jointly even though charged with separate offences. BailSection 5 (L) provides that only the Attorney-General can authorize the release ofan accused on bail.Double jeopardy plea barredSection 5 (h) provides that an accused may not plead double jeopardy on theground of a previous acquittal relating to the same act. RetroactivitySection 9 (1) makes the criminal provisions, but not the detention provisions, ofthe Act retroactive for five years to 1962. Application to the TerritorySection 9 (2) makes the Act applicable to the Territory, including the EasternCaprivi Zipfel../ New paragraph (a) substituted by Act No. 34 of 1969, section 9 (2).

- 198 -Terrorism ActTechnical supplementFor more details on the Act, and, in particular, on ifs relation tothe "Sabotage Act", see Mathews' "Law, Order and Liberty ix South Africa" (seeBibliographic Note, Part IV) and "Repressive Legislat.9n of the Republic of SouthAfrica," United Nations Publication 1969, pp. 80-91."Terrorism" defined: nature of the offenceIt has been claimed by government apologists that this Act does notcreate a new crime, but merely gives a new title to pre-existing Common Lawcrimes committed for a new (political) purpose. I/ However, an observer at thetrial of Eliaser Tuhadeleni (the first trial under the Act) suggested that the realreason for enacting the Terrorism Act was that most of the accused could not havebeen proved guilty of Common Law offences. 2-/"Terrorism" defined: commission of any act with intentAs defined in section 2 (1) (a), terrorism consists of the commission ofy act whatsoever with an intention to endanger the maintenance of law and order.There is some question whether, under this definition, any person who commits acrime requiring mens rea is not automatically guilty of terrorism.In any case, the presumption created by section 2 (2) against persons

accused under section 2 (1) (a) operates to equate each of the "results" listed in thesubsection with endangering the maintenance of law and order. The prosecutionmerely has to allege that the accused's act was "likely" toproduce such a result -- not that it did produce such a result -- to shift the burdenonto the accused to show that he did not intend any of the "results". It should benoted particularly that in South African law, "likely" is construed as "possible",not "probable", and that the burden of proof on the defendant is not merely toshow believable evidence of his lack of intent to endanger law and order, but toprove it beyond a reasonable doubt.The "results" are so broadly stated that any number of normal and otherwiseblameless activities could bring about one of them: e.g., any strike would (ifeffective) prejudice an industry or undertaking (d) or cause financial loss (h) --these, of course, are the reasons for striking, namely, to exert financial pressure onan employer -- and it might hamper the maintenance of law and order (a),promote general disorder (c), encourage economic change by force (f), obstructtraffic (k), or even embarrass the government (1).i_/ Republic of South Africa, Department of Foreign Affairs, South Africa andthe Rule of Law (1968), pp. 53-4.g_/ Arthur Larson, "South West Africa: Testing Ground of International HumanRights", speech delivered before the Section on Indivilual Rights andResponsibilities of the American Bar Association, Philadelphia, Penna.,5 August 1968, departure from printed text.

Terrorism, T.S.- 199Aiding, abetting, inciting, attempting or conspiring to commit an act with therequisite intent is punishable in the same way as the commission of terrorismunder sections 2 (1) (a) and (b)."Terrorism" undergoing trainingThe declared purpose of this paragraph is to punish as for treason substantially thesame crime -- undergoing guerilla warfare training -- as is already punishable asfor treason under the Suppression of Communism Act. 3/ But, as worded, theparagraph might make it unlawful to study computer science, chemistry orengineering; to grant any adult a scholarship~or to urge compulsory schooling fornonwhites."Terrorism:" possessing explosives or firearmsUnder this paragraph, unlike paragraph (a), the prosecution does not have toallege even a constructive intent to endanger the maintenance of law and order. Ifthe accused possesses firearms or explosives even legally and injures a person orproperty even accidentally, he then must prove that he did not intend to use sucharms or explosives to commit the act causing the injury since the act clearlycaused bodily injury or financial loss ("result" (g) or (h)).In this connexion it should be noted that an African cannot normally obtaina permit to carry firearms. Therefore his possession of arms will almost inevitablybe illegal unless he is carrying them for a white who has a permit.

The paragraph refers to other "weapons" without defining them. It is possible thatthe courts would consider as covered by the paragraph at least some of thosewhich were listed as "dangerous" in the General Law Amendment Act of 1949,including inter alia: handles with wire, chains, etc., attached; heavy assegais,loaded and spiked sticks; heavy sticks; knuckledusters; sandbags; heavywrenches; crowbars and hammers; axes and pickaxes; and solid rubber batons. !Exemption from the ActSection 2 (4) exempts from the definition of terrorism acts committedoutside South Africa by a non-citizen who is not and never has been a "resident"of South Africa and has not been illegally in the Republic since the effective dateof the Act. As to the meaning of "residence", see S. v. Fazzie. 5/3 See Act No. 44 of 1950, section 11 (b)ter (i)bis (penalties).Act No. 51 of 1949, section 3, now replaced by the Dangerous Weapons Act,No. 71 of 1968. The latter defines "dangerous weapons" in even broader terms,which clearly include all objects listed in the earlier law. 5-1 1964 (4) S.A. 673(A.D.).

Terrorism, T.S.- 200PenaltySection 5 (&) provides that none of the provisions of the Criminal Procedure ActV. nor of the Criminal Procedure Ordinance, L/ wdch mitigate punishment (i.e.,probatioh', sitspension of sentence, etc.) or-which grant special treatment tojuveniles shall apply to persons convicted of terrorism.Prosecution must be authorizedThis provision is said by government apologists to protect from unwarrantea"prosecution persons whose acts may only technically constitute terrorism. 8/ It,may equally well be described as mandating political intervention in the case ofevery person arrested under the Act. Thus it underscores the political natur* of theoffence.In any case, this provision does not assure the technically guilty that they will notbe prosecuted. At best it places great power in one fallible person, who may use itto harrass political opponents or to compel detainees to inform on others or tobear false witness in order to avoid prosecution.DetentionThe provision that a detainee may be held until he has "satisfactorily replied to allquestions" is interpreted to mean until he has confessed or informed to thesatisfaction of the police, whether or not he in fact committed the act to whichhe"confesses" or had information as to the subject about which he "informs". It iscommon ca-use that interrogation by torture is the rule and not the exception.Although under section 6 (5) the courts may not intervene "to pronounce upon thevalidity of any action taken under this section", it appears that they have thepower to prevent gross abuse of prisoners -- if they can be persuaded it exists --on the grounds that such abuse is not an action taken "under" the section, but ultravires. Thus a court did entertain an injunction proceeding brought on behalf of aNamibian detainee, Gabriel Mbindi, by other prisoners who had access to a

lawyer.,/ But the odds are against judicial protection of detainees, even if there isuncontroverted evidence that they were assaulted when previouslyinterrogated.l_0fThe prohibition in subsection (6) against access to persons held indetention is interpreted as preventing the police and prison officials fromA/ Act No. 56 of 1955.Ordinance No. 34 of 1963./ House of Assembly Debates, 6 June 1967, col. 7248; South Africa and theRule of Law, supra, n. 1, at p. 48.1/ Shityuwete v. Commissioner of Police, 1968, settled out of court.10J/ See Madikizela and fourteen others v. Minister of Justice and Minister ofPolice, Unreported, T.P.D. M.254/70, criticized by Dugard in 87 S.A.L.J.289-98 (1970).

Terrorism, T.S.- 201notifying the families of detainees that they are being held. The Minister ofJustice has gone so far as to refuse to give any information about detainees toM.P.s asking questions on the floor of Parliament. i_/Documents as evidenceSection 2 (3) covers not only original documents but also photocopies of suchdocuments. In S. v. Tuhadeleni this subsection made it possible to introducedocuments connecting the defendants with SWAPO and through SWAPO to eachother without having to authenticate the documents or to provide independentproof of the facts stated in them.Location of trialThe Minister of Justice can manoeuvre defendants before the least sympatheticjudges under section 4 (2) and make it difficult for their family and friends to givethem moral courage by ordering trial far from their homes, as in S. v. Tuhadeleni.Trial procedureThe joint trial of a large number of defendants (not all -- or even any -of whomare accused of participating in the same acts) tends to become a spectacle ratherthan a search for the truth about the specified charges. In such a joint trialinconsistent defences are lost or endanger other accused, and every defendant islikely to be jeopardized by popular prejudice against the least popualr.Double jeopardyIn the case of Mrs. Mandela and her co-defendants, the court dismissed chargesunder the Terrorism Act on essentially a claim of double 'Jeopardy because theyhad been acquitted previously on charges based on the same acts but broughtunder the Suppression of Communism Act: hence section 5 (h) didnot apply. If the first prosecution which ended in acquittal (technically, droppingof the charges by the prosecution) had been brought under the Terrorism Act, thestate would not have been barred from bringing the samepersons to trial again for the same acts under the same legislation.Retroactivity

The obvious reason for making the Act effective as of five years before it wasenacted was to enable the government to prosecute Tuhadeleni and others (whohad been illegally detained for several years) for a newly created crime of whichthey could be convicted. There is no obvious explanation for the failure to makethe detention provisions 1L2j retroactive to the same date.13/ Debates, 1 June 1967, col. 7043; ibid., 2 June 1967, cols. 7105, 7118-9. 1jSection 6.

- 202 -TREATY OF PEACE AND SOUTH WEST AFRICA MANDATE ACT No. 49of 1919, as amendedThis Act, now apparently wholly inoperative, granted broad powers tothe Governor-General to govern the Territory for a year, _/ but the powers ,eresubsequently extended until revoked by Parliament. 2/The Governor-General's powers were confirmed by section 44 (1) of the 1925South-West Africa Constitution 3 as originally enacted. But subsection(3) of a new section 44, V_/ provided for their abrogation by proclamation. Thepowers were abrogated as of 17 October 1951 by Proclamation No. 235 of thatyear.It should be noted that the Governor-General was granted new power, as of 1November 1951, to legislate by proclamation for the Territory, but only as tosubjects not within the competence of the territorial Legislative Assembly. /Technical supplementThis Act has not been repealed in terms. However, section 44 (3),as amended, of the 1925 Constitution Act provided that it was "modifiedto this extent that the powers of legislation granted to the GovernorGeneralthereunder shall be abrogated ...". Since the 1919 Act deals virmually exclusivelywith the powers of the Governor-General -- theexceptions in section 4 (2) and (3) limit his powers by reserving certain authorityto Parliament -- it would appear that the Act is now inoperativeat the very least, if not repealed by implication. Certain grants madeby the Governor-General under section 4 prior to 17 October 1951 continuedin existence, however, except as subsequently modified. 6/1_/ Time limitation in section 5.2/ Act No. 32 of 1921, section 2. I Act No. 42 of 1925.Substituted by Act No. 23 of 1949, section 22, and subsequently amendedby Act No. 55 of 1951, section 1 (a). / Act No. 55 of 1951, section 2. §/ Act No.42 of 1925, section 44 (7), added by Act No. 55 of 1951, section1 (b).

- 203 -UNLAWFUL ORGANIZATIONS ACTNo. 34 of 1960, as amendedGeneralThis Act provides another means of declaring unlawful any organizations whichare not in sympathy with the South African government's racial policies, and of

equating other groups to unlawful organizations. It is construed with, and shouldbe read with, the Suppression of Communism Act. _/ANC and PAC declared unlawfulSection 1 (1) empowers the State President to declare the ANC (AfricanNational Congress) and the PAC (Pan African Congress) to be unlawfulorganizations. Subsection (2) empowers him to declare unlawful any otherorganization which he is satisfied intends to carry on the activities of the ANC orthe PACdirectly or indirectly.The ANC and the PAC were declared unlawful the day after the Act becameeffective. 2/Equating associations to unlawful organizationsSection 1 (3) (a) 3/ empowers the State President to declare that anyassociation was, at all times mentioned in the proclamation, in fact, the ANC, thePAC, or any other organization declared unlawful under this Act or theSuppression of Communism Act. (E.g., POQO was the PAC.) This has theretroactive effect of making the illegality of the equated organization date back (ifthe proclamation so provides) to the date that the ANC or PAC was declaredunlawful. 1_/PresumptionsSection 1 (3) (b) and (c) creates presumptions which attribute certaincriminal acts committed by other associations to the ANC or PAC and whichestablish that officers of certain associations not declared unlawful were officersof an unlawful organization.Application of provisions of the Suppression of Communism ActSection 2 5/ makes most provisions of the Suppression of Communism Actapply mutatis mutandis to the Unlawful Organizations Act. In particular,references to the objects of communism in the 1950 Act are to be construed asreferences to the objects of organizations declared unlawful under section 1 (1) or(2) of the 1960 Act. Yi/ Act No. 44 of 1950, as amended, q.v. 2_/ Proclamation No. 119 of 1960,Government Gazette Extraordinary No. 6414,8 April 1960.eI Substituted by Act No. 37 of 1963, section 14 (a).House of Assembly Debates (Hansard), 26 April 1963, col. 4840.Amended by Act No. 76 of 1962, section 20, and Act No. 37 of 1963, section 15.6/ See also digest of Suppression of Communism Act, "Definitions".

Unlawful Organizations- 204Application to the TerritorySection 5 applies the Act to the Territory, but omits any reference to the EasternCaprivi Zipfel.

- 205 -Unlawful organizations Act

Technical supplement_ uating associations to unlawful organizationsWithin a short time after the Act was signed, subsection 1 (3) (a) was employed todeclare that POQO, the "Dance Association", the "SA FootballLeague", the "Football League", and the "Football Club" were in fact the PAC;and that "Umkonto We Sizwe" and "Spear of the Nation" were in fact the ANC.When the Act was being debated, the Minister of Justice was asked onthe floor of the House why subsection 1 (2) could not be used to declare Poqounlawful:Minister: I can declare it to be an unlawful organization /under subsection(2)7Member: Well why does the Minister not do so?Minister: ... It is not a question of declaring Poqo to be an unlawfulorganization. It is a question of equating the two organizationsMember: Once you can declare it an unlawful organizatirn, why do you haveto equate it?Minister: The moment I do that thqre is a void from 8 June 1960 feffectivedate of Unlawful Organizations Act/ to the date on which you declare Poqo anunlawful organization. Then it is not an offence to have belonged to Poqo untilsuch time as you have declared it an unlawful organization, and thatis the whole point. l/Application of provisions of the Suppression of Communism ActThe provision in section 2 (d),that any reference in the Suppression ofCommunism Act to the objects of communism shall be construed as a reference tothe objects of an organization declared unlawful under the 1960 Act, "or toobjects similar to the objects of any such organization", was added to overrule S.v. Nokwe. ?_ In that case the Transvaal Provincial Division reversed theconviction of the appellant, the former Secretary-General of the ANC, forcontravention of section 11 (a) of the 1950 Act read with sections 1 and 2 of the1960 Act. Nokwe had worked for the "All-In Africa Conference," an organizationwith objects similar to those of the banned ANC. 'However, the Court held thatthe activities of the Conference were not proved to have furthered or to be likelyto further "the achievement by the Congiess, through its members andorganization, of its own objects." 3/1_/ House of Assembly Debates (Hansard), 26 April 1963, col. 84o0. / 1962 (3)S.A. 71 (T.).3/ At 76. Enphasis"added.

- 206 -WAR PENSIONS ACT(No. 82 of 1967, as amended)(Never legally in effect in Namibia)GeneralThis Act provides pensions for South African veterans injured'in World War IIand the Korean War, and compensation for the dependants of veterans who diedas the result of such service.

This digest emphasizes primarily the discriminatory formulae for pensions andother compensation.Disability pensionsSection 6 establishes disability pensions for veterans with 20% or more disability,in accordance with Schedule 2 appended to the Act.Schedule 2 provides a maximum pension of R54 per month for a totally disabled'white veteran; the amount decreases in steps to a minimum of Rl0.80 per monthfor a 20 per cent disabled white.Lump sum settlement for minor disabilityIf a veteran is less than 20% disabled, he receives a lump sum settlement in lieu ofall pensions for himself and all family allowances during his lifetime. A 10%disabled white receives R480, and a "nominally" disabled white receives R240 orR120, depending on his disability, and an African receives R120 or R60. I/Family allowances: wife of disabled veteranThe wife of a totally disabled whIte yeteran receiyes a monthly pension ofR13.20; the amount decreases in equal steps to R2.64 if her husband is 20%disabled. The wife of a Coloured or Asian veteran receives a pension of one-halfthe amount granted to the wife of a white veteran, and the wife of an Africanreceives a pension of one-quarter that amount. 2/Family allowance: children of a disabled veteranScheoule 3 3/ sets out monthly allowances for the children of disabledveterans, as well as annual education grants for them. This complicated scheduledivides the children of each racial group into three classes according to age; tieamount of the monthly allowance (but not of the annual education grant)l/ Schedule 5, made effective by section 6 (2). 2/ Schedule 2, made effective bysection 7 (1). 3/ Made effective by section 7 (1).

War Pensions- 207increases slightly as the age increases. The amount of the monthly allowance andof the annual education grant decreases as the extent of the veteran's disabilitydecreases from 100 per cent to 20 per cent.For each child of a white veteran who is totally disabled'the monthly salowanceruns from RIO for the youngest to R13.20 for the oldeit; and the education grantis R96 per year for each child regardless of age. The minimum monthlyallowances for children of a 20 per cent disabled white veteran run from R2 forthe youngest to R2.64 for the oldest; and each receives an annual education grantof R19.20.The Schedule assigns the child of a Coloured or Asian veteran exactly one-halfthe allowance and grant assigned to the child of a white veteran in the samecircumstances; it assigns the child of an African one-quarter of such allowanceand grant.The eligibility of the children of white disabled veterans continues to a later agethan that of the children of non-white veterans. The allowance and rants for thechildren of white disabled veterans normally cease when a boy reaches 18 or a

girl reaches 21 (or sooner if she marries). For children of nonwhite veterans, thecut-off age is 14 for a boy and 16 (or earlier marriage) fora girl. /Supplementary pensionsSection 8 provides for a supplementary pension for every disabled veteran whosepost-disability earnings plus his pension payments (as calculated under thepreceding rubrics) add up to less than his potential pre-disability earning capacity.(Varying racially determined maxima are set for the potential predisabilityearning capacity of whites, Coloureds and Asians, and Africans. 5/)To compensate for continuing inflation, section 8 (4) provides thatpotential pre-disability earning capacity calculated prior to 1 October 1965 shallbe deemed to be increased by 45 per cent for white veterans and by "such lesser'amount as the Minister /of Social Welfare and Pensions! may determine" for non-white veterans. 6/ For the period after 1 October 1966 a veteran's potential pre-disability earning capacity is calculated to have increased by another 10 per centfor white veterans, 5 per cent for Coloureds and Asians, and 2-1/2 per cent forAfricans. */Attendant's allowanceSchedule 4 8/ provides an allowance for an attendant for a disabledveteran in need of special care. The allowance is R20 per month for a whiteveteran, R10 for a Coloured or Asian, and R5 for an African.!-/ Section 1 (3).Sect-ion 8 (1) (a) (i), (ii).Section 8 (4) ( ) emphasis added.Section 8 (5).Made effective by section 12.

War Pensions- 208Compensation for the widows and children of deceased veteransSchedule 6 2/ establishes pensions for widows and children of deceased veteransand also provides for certain lump sum payments ("gratuities").Widows of white veterans receive R43.20 per month plus a monthly allowance offrom R1O to R13.20 for each child, according to age, and an annual education&rant of R96 per child. Widows of Coloured and Asian veterans receive onehalfsuch amounts for themselves and their children, and widows of Africans receiveone-quarter such amounts.The cut-off age for allowances and grants for children of white and nonwhiteveterans is the same as the cut-off age for children of disabled veterans. 1Inaddition to the monthly pension for herself and allowance for herchildren, the widow of a white veteran receives a gratuity of R264 for herself andR88 for each child. The widows of non-white veterans do not receive anygratuities. 11/Supplementary pensions for the dependants of deceased veteransSection 17 provides for a supplementary pension for a widow if her deceasedhusband's potential pre-disability earning capacity greatly exceeds her pension

and children's allowances combined. As in the case of supplementary pensions fordisabled veterans, varying racially determined maxima are set for the potentialpre-disability earning capacity of whites, Coloureds and Asians, and Africans.The effect of remarriage of the widowIf a widow of a deceased veteran remarries her pension ceases, but sheis granted a lump sum gratuity of R264 for a white, R132 for a Coloured or Asian,and R50 for an African. 12/Application to TerritorySection 1 defines the Republic or the Union to include "the territory of South-West Africa", but the definition does not include the Eastern Caprivi Zipfel.91i Made effective by section 16.10/ Section 16 (3).i/ Schedule 6.12/ Section 18.

- 209 -Wa pensions Act.Technical supplementGbneralThis Act consolidates and replaces earlier legislation enacted during the SecondWorld War. Provision for veterans of the Korean War is made by Chapter VI.opposition Members of Parliament have often referred to the Government's 4-2-1formula for social welfare benefits: that is, that the Government follows a formulain granting benefits which gives four times as much to whites as to Africans andtwice as much as to Asians and Coloureds. Although government spokesmen havedenied the existence of any such formula, the provisions of thisAct suggest that it is followed at least as a rule-of-thumb.Disability pensionsSchedule I indicates the degree of dsiability officially assumed to resultfrom various types of injuries. The degree is listed to the nearest 10 per cent.The schedules which provide pensions and allowances for disability rangefrom 100 per cent to 20 per cent by steps of 10 per cent. The change in theamount of a pension or allowance is calculated on a straight-line basis, thedifference being the same between 20 per cent and 30 per cent as between 90 percent and 100 per cent.Lump sum settlement"Nominal" disability is closer to one per cent than to 10 per cent.Family allowance: childrenThe form of Schedule 3 (somewhat abbreviated) is as follows:.'-~ I - I -. - .., .-. .1Ei ropean veteransNon-Europs. x.Africans)African veteranschildren's allowances children's allowances children's allowancesEach Each Each Educa- Each Each Each Educa- Each Each EachEducachild child child tional child child child tional child child child tional

under 6 or 13 o grants under 6 or 13 or grants under 6 or 13 or grants Sixover over six over over six ov r| overyears but years but years butunder under under13 13 13per mO.Rc10. oc 2. OCpermO.Rc 11.6010.1.12.32per mO.Rc 13.20 11.882.61.max.per year R C 96.0086.403.9.20per Mo. Rc5.001.00permO.R5.80per 'nO.Re6.6o11.16 11.32max.per year Re8.o0 S9.60R c2.50 0.50per mO. R e2.90 0.58permO.Rc3.30Z.o0.66max. per year Re24.0

4.8oPer cent1009020

War Pensions, T.S.- 210Supplementary pensionsAccording to section 8 (1) (a) the supplementary pension is to be calculated sothat it does not exceed the least of the three following amounts:(i) the difference between the veteran's pre-disability Earningpotential and the sum of his post-disability earnings plus hispension under the Act; or(ii) the difference betweenR120 per month for a white veteran,RI01 for a Coloured or Asian veteran, orR89 for an African veteranand the sum of his post-disability earnings plus his pension under tkeAct; or(iii) the difference betweenR159 per month for a white veteran,R134 per month for a Coloured or Asian veteran, orR118 per month for an African veteranand the sum of his post-disability earnings plus his pension and allallowances under the Act (except an allowance for an attendant).A veteran without post-disability earning capacity shall receive a minimumsupplementary pension equal to 60 per cent of his disability pension. 1/ Section 8contains other special provisions and exceptions, as well.Technically, section 8 refers to a veteran's "post-disablement earning" capacity",rather than to his "post-disability earnings"; but for the summary in the digest theyhave been assumed to be identical. Section 8 (i) (c)-(e) contains variouspresumptions concerning such earning capacity. Both predisability and post-disability earning capacity are defined in section 1.Recalculating pre-disability earnings capacityIn accordance with political needs, supplementary pensions can beincreased for poorer veterans to reflect increases in the cost of living byrecalculating such veterans' pre-disability earning capacity so as to take account,more or less, of changes in wage and salary levels over the years. Subuctions 8 (4)and (5) provide for successive increases of this type. Each of these increases,however, has compounded the discrimination against non-, white veterans, withsubsection (5) affecting Africans particularly.If subsections (4) and (5) merely provided that the potential pre-disabilitYearnings of all veterans were increased by the same percentage, %the differencesbetween the amounts of the supplementary pensions granted veterans of variousraces would increase, since the same percentage would be applied to disparate

base rates. However, subsections (4) and (5) apply higher percentages to higheroriginal PaY1/ Section 8 (1) (b).

war Pensions, T.S.- 211rates (for whites) and lover percentages to lower rates (for non-whites), so that thespread between the recalculated ore-disability earning capacities of whites and ofnon-whites, especially Africans, increases geometrically.The recalculations under subsections (4) and (5) may be intended toreflect actual trends in the wage market. In that case they constitute evidence ofgrowing disparities between white and non-white pay. Alternatively, theyconstitute another example of gross - and growing - discrimination hidden behindan obscure formula.

- 212 -WAR VETERANS' PENSIONS ACT(No. 25 of 1968, as amended)(Never legally in effect in Namibia)GeneralThis Act provides pensions for elderly and incapacitated veterans of wars inwhich South Africa has been involved.The Act is couched in general terms, with all details to be filled in by regulation.Racial discriminationSection I j/, in fact although not in form, defines "war veterans" as South Africansother than Blacks who served in the Anglo-Boer War, the 1906 Zulu rebellion inNatal (whites only), the First or Second World Wars, or the Korean War.Section 15 (1) empowers the Minister to promulgate regulations as tonearly all matters touched on by the Act, and subsection (3) 2/ permits differentregulations to be made as "to different areas or different "classes or populationgroups". Section 16 (1) 3/ empowers the State President to assign administrationof the Act as to persons of one class or population group to one Minister and as toone or more other classes or population groups to one or more other Ministers.Application to the TerritorySection 16A j_/ makes the Act and amendments applicable to the Territory,including the Eastern Caprivi Zipfel.1/ Definition of "war veteran" substituted by Act No. 15 of 1971, section 1 (4). 2/Substituted by Act No. 15 of 1971, sec. 3 (b). 3/ Substituted byAct No. 15 of1971, section '. 1/ Added by Act No. 15 of 1971, section 5.

- 213 -War Veterans' Pensions ActTechnical supplementRigial discrimination: definition of a "war veteran"As originally enacted in 1968, the statute defined a "war veteran" as a whvte,coloured, Chinese or Indian South African who had performed military service in

any of the listed wars (with the exception that the definition covered whites onlyin relation to the Zulu wars).When the Act was applied to Namibia, the present definition of war veteran wassubstituted. I/ At the same time the definitions of "Chinese", "coloured person",and "Indian" were deleted from the first section. 2/ The shbstituted definition thusappeared on its face to be non-discriminatory (with the exception relating to theZulu wars), an effect desired by the Government since the question of Namibiawas then before the International Court. 3/However, the present (substituted) definition contains a proviso to the effect thatit does not cover "any person who, prior to the commencement of the WarVeterans' Amendment Act, 1971 Li.e., prior to the very Act which effected thesubstitution7 , was not a war veteran in terms of any law then in force".(Emphasis addedT. It is obvious that the law in effect prior to the Amendment Actwas the original version of the War Veterans' Pension Act, which specificallyexcluded Africans from its definition of war veterans. Hence, the proviso meansthat the former definition continues to control the granting of pensions under theAct even though it is no longer the printed law. 4/Racial discrimination: different regulationsThe effect of sections 15 (1) and (3) and 16 (1) is to make possible discriminatoryadministration of the Act even though the Act does not appear to sanctiondiscrimination. Read together, these provisions enable the various Ministers whoare charged with administering the Act as to different "population" (i.e., racial)groups to hide the fact that different regulations apply to the different races, byprinting the regulations in different issues of the Gazette on different dates underdifferent departmental headings.I/ By Act No. 15 of 1971, section 1 (d). ?/ By Act No. 15 of 1971, section 1 (a). 3/See House of Assembly Debates (Hansard), 16 March 1971, cols. 2878-85passim. E/ Debates, 4 March 1971, cols. 2024-5.

- 214 -WORIK 'S COMPENSATION ACTNo. 30 of 1941, as amendedDeneralThis Act is designed to provide compensation for workers who are killedor injured as a result of accidents during employment or who suffer from certainoccupational diseases. Its eleven chapters cover: definitions; administration; rightto compensation; liability for compensation; amount and method ofcompensation; recovery of compensation; accident and reserve funds; medicalaid; compensation for "Bantu"; industrial diseases; and miscellaneous.This digest does not cover that part of the law which is generally similar toworkmen's compensation legislation in other countries, but concentrates on themore flagrant discriminatory provisions, viz., exclusions from coverage, andinferior compensation for Africans.Exclusion of Africans from coverageThis Act discriminates against Africans by its definition of excluded workers. /

Section 3 (3) specifically excludes: (i) "outworkers" (i.e., "persons to whomarticles or materials are given out by employers to be made up, cleaned, washed,ornamented, finished, repaired, adapted for sale, altered or otherwise worked withon premises not under the control of the employer") 2/ and (ii) domestic servantsin private households and small boarding houses and institutions. Mostoutworkers and domestics are Africans.Temporary total disabilityThe compensation formula is the same for all workers, black and white: monthlypayments of 75 per cent of monthly earnings up to a maximum of R200 (earningsin excess of R200 are ignored in calculating monthly payments.) 3/Permanent disability of 30 per cent or lessThe compensation formula is the same for all workers: a lump sum of ayear's pay or less, with a maximum of R2,080, for full 30 per cent disability; and aproportionately smaller sum for proportionately less disability. /'_/ Some other non-whites are also excluded from coverage by the definition ofexcluded workers.2/ Section 3 (3) (d).3/ Sections 38 (F(a), (4), amended by Act No. 60 of 1971, section 1 (workersotherthan Africans); and 84, amended by Act No. 60 of 1971, section 3 (Africans). 4/Sections 85 (1) (a) (substituted by Act No. 60 of 1971, section 4 (a)), (b)- frican workers), 39 (1) (a) (substituted by Act No. 60 of 1971, section 2(a))(b) (all other workers).

Workmen's Compensation- 215Permanent disability of more than 30 per centAfricans who are permanently totally disabled are given a lump sum payment ofslightly less than four times that of 30 per cent disability, with a minimum ofR480; and a proportionately smaller sum for proportionately less insability. V/All other workers who are permanently totally disabled receive a monthly pensionfor life of 75 per cent of their monthly earnings up to a maximum of R200; thepension is proportionately reduced if the disability is less than 100 per cent. 6/DeathThe dependants of a deceased African receive such lump sum payment as theWorkmen's Compensation Commissioner "deems equitable"; but such payment,together with any payments received for permanent disability, may not exceed theamount he could have received for permanent total disability. 7/ TheCommissioner may also grant reasonable funeral expenses, not to exceed R75($88). 8/The dependants of a deceased non-African worker receive a monthly pensionwhich may equal, but not exceed, what would have been paid to the decedent if hehad been permanently totally disabled; the amount depends on the number,relationship and circumstances of the dependants. 9/ The Commissioner may alsogrant reasonable funeral expenses, not to exceed R150. ($177). 10/Calculation of earnings

A ,orker's earnings are calculated to include the ters unless he is temporarilydisabled and continues to ters dueing his disability. l/value of food and quarreceive food and quar-Method of paymentThe Commissioner is empowered to pay any lump sum dependants in instalmentsif he deems it desirable. 12/ are usually paid in this manner. 13/due to a worker or his It appears that AfricansSection 85 (1) (c) (substituted by Act No. 60 of 1971, section 4 (b)), (d).Section 39 (1) (-) (substituted by Act No. 60 of 1971, section 2 (b)), (i), (5)7Section 86 (1).Section 86 (2). / Section 40 (1). 10/ Section 40 (2). I-i/ Section 41 (1) (a). 12/Section 46 (1) (aT. 13/ Council Communication No. 188/72, letter dated 29February 1972 from Miss NancyDick of Amnesty International addressed to the Chief of UN Unit on Apartheid.

Workmen's Compensation- 216Application to TerritoryThe Act was amended in 1956 to define the "Union" to include South WestAfrica. i1! At the same time section 109bis was added, appilying the A&t to theTerritory, including the Eastern Caprivi Zipfel. 15/14/ By Act No. 51 of 1956, section 1 (i), (k). 125/ Ibid., section 30, subsequentlyamended by Act No. 21 of 1964, section 9-

- 217 -Workmen's Compensation ActTechnical supplementGeneralIn general, compensation is limited to accidents which do not result from "seriousand wilful misconduct" on the part of workers. l/ However, some compensationmay be £rapted even in such cases if death or serious disability results.Exclusion of AfricansThe social legislation of a number of countries does not cover cottage industryworkers and domestic servants, who may or may not be distinguished from otherworkers by race, colour, caste or culture. In South Africa and the Territory,however, there is clearly a very high correlation between excluded occupation andrace (colour).As originally enacted, the law excluded agricultural workers except when injuredby vehicles or machines. That exclusion has, however, been repealed;2/ hence,agricultural workers appear to be covered by the Act. Whether they in factreceive workers' compensation is not known.Racially differentiated compensation formulaeAlthough the provisions of Chapter V, governing amount and method ofrompensation, would appear to apply to all workers, they do not apply to Africansexcept insofar as they are identical to provisions in Chapter IX, which covers"Compensation for Bantu".

This follows from section 82, which provides that "except where inconsistent withthis Chapter Li.e., Chapter IV/ all the provisions of this Act shall apply to Bantuworkmen". (Emphasis added.) Since the provisions of Chapter V are inconsistentwith those of Chapter IX, except as to temporary total disability and permarentdisability of 30% or less, the provisions of Chapter V do not, therefore, apply toAfricans.Section 2 defines "Bantu" as any person who "belongs" to an aboriginal tribe orrace of Africa, including Bushmen, Hottentots and Korannas; but it specificallyexcludes American negroes, Eurafricans, Eurasians, Cape Malays, Gricquas,Rehoboth Basters, Mauritians and St. Helenians.It should be noted that other racially discriminatory provisions occur in parts ofthe Act which are not referred to in the digest. For example,1/ See section 27 (1) (b).2/ By substitution of new section 3, defining "workman," by Act No. 21 of 1964,section 1 (1).

Workmen's Compensation, T.S.- 218only whites and coloureds are compensated if affected by the first disease listed inthe schedule of compensable industrial diseases appended to the Act.The fees paid to doctors for services to injured workers covered by the Act arealso discriminatory. See last paragraphs of this supplement.Temporary total disabilityThere is a minimum monthly stipend of R13 or actual earnings, whichever is less,for workers other than Africans. 3/Normally, payments for temporary total disability do not continue after 12months, at which point the disability is deemed permanent and compensatedaccordingly. However, monthly compensation for temporary disability may, ifcircumstances warrant, be continued for a longer period. 4/The Act makes no provision for temporary partial disability.Permanent disability of 30% or lessThe lump sum for 30% disabilitF is-calculated as 12 times monthly earnings up toR40 plus 10 times monthly earnings from R40 to R150. There is no minimumamount. The maximum is R1,580, since earnings over R150 are ignored incalculating the compensation due.Permanent disability of more than 30%The lump sum payment to Africans for total permanent disability is calculated as48 times monthly earnings up to R40, plus 30 times earnings from R40 to R150. I/The minimum payment (R480) for total permanent disability represents earnings,including the value of food and quarters (see "Calculation of earnings") of R10per month. Council Communication No. 188/72, cited in n. 13, states that mostAfricans who are permanently totally disabled receive only the minimumpayment.The minimum. monthly pension for other workers is R13 or actual earnings,whichever is less.

Special grants, in the discretion of the Commissioner, may be made if anattendant is required for a permanently disabled worker. 6/No deduction is made for payments previously received for temporary totaldisability. 7/3/ Section 38 (1).I/ Sections 38 (2), 84.5/ Section 85 (1) (c), (d).~/ Section 44.7 Section 85 (2).

Workmen's Compensation, T.S.- 219Death benefitsSection 40, which provides death benefits for dependents of all workers exceptAfricans, is very complicated. In general,it provides for pensions which are acertain percentage of the monthly payments which the deceased worker wouldhave received for total permanent disability.A widow receives a lump sum of R300 or two times the worker's monthlyearnings, plus a pension of 40% of the amount which would have been payable tothe worker, until she dies or remarries. On remarriage she receives a lump sumequal to 30 times her monthly pension. 8/ There is an additional monthly pensionper child of 20% of the pension payable to the worker, but the total of all pensionspayable to the family of the worker cannot exceed that which would have beenpayable to him had he survived permanently totally disabled; pensions forchildren, unless mentally or physically handicapped, terminate at 17 or onmarriage, whichever is the earlier. 9/ Provisions are also made for otherdependents of the deceased worker. 10/Death or disability resulting from industrial diseaseSection 89 provides that compensation for death or disability resulting from anindustrial disease (if compensable under the schedule appended to the Act) is tobe compensated as if it resulted from an accident. Consequently discriminationbetween compensation for Africans and compensation for other workers occursalso in relation to industrial diseases.Note on fees paid to doctors under the ActGovernment Notice No. R. 250 of 1971 ll/ provides a schedule of fees andcharges to be paid to doctors for medical services rendered to sick or injuredworkers covered by the Act.The fees are calculated either in terms of the basic difficulty or complexity of theservice, expressed in "units"; or in terms of the time spent on the service, witheach quarter or half hour valued at a certain number of "units"; or in terms of acombination of basic "units" plus time spent. Some services are worth more unitswhen performed by a specialist than when performed by a general practitioner.Fees are calculated in many cases not only to reflect the professional status of thepractitioner performing the service, but also to reflect the race of the patient.Thus, for example, in anesthesiology, a "unit" is worth R4.75 in the case of a"non-Bantu' but only R3.15 in the case of a "Bantu". And in surgery and

dermatology the same service is frequently worth fewer units when performed onan African.Section 40 (1) (a), (4) (a), (c).9/ Section 40 (1) (c).10/ Section 40 (1) (1), (e).1/ Published in Government Gazette No. 2997, 19 February 1971.

- 220 -PART IIITerritorial OrdinancesADMINISTRATOR' S LEGISLATIVE POWERS ORDINANCE No. 20 of 1952By this Ordinance the Territorial Legislative Assembly grants the Adminis. tratoremergency power to legislate by proclamation in the South West AfricaOfficial Gazette if he considers it a "matter of urgency".The restrictions on the Administrator's power are written into the Ordinance:(i) the subject must be within the competence of the LegislativeAssembly; 1/(ii) the proclamation may hot be in conflict with any Act of Parliamentapplicable to the Territory; 2/ and(iii) every such proclamation shall be promptly laid before the LegislativeAssembly, which may disapprove it or any part of it. 3/Section 1 (1). Section 1 (2). section 2.

- 221Administrator's Legislative Powers OrdinanceTechnical supplenentSince this delegation of powers was not mentioned in the 1968 Constitution Act(No. 39 of 1968), it presumably continues in effect. However, the number ofsubjects to which it can apply has been greatly reduced by the legislative"rearrangement" brought about by the South-West Africa Affairs Act, No. 25 of1969, section 14 (1).

- 222 -COLOURED DEVELOPMENT CORPORATION POWERS IN THETERRITORY ORDINANCENo. 28 of 1966GeneralThis Ordinance was enacted to authorize the Coloured Development Corporationto exercise its powers in the Territory. The Legislative Assembly was empoweredby section 26 bis 1l/ of the Coloured Development Corporation Act 2/ to adoptsuch an ordinance.The Ordinance must be read with the Act.DefinitionsThe Ordinance includes several definitions necessary to make the ColouredDevelopment Corporation Act applicable to the Territory. These include, interalia, definitions of "Coloured (person)", "Coloured area", Coloured company",and "principal act" (i.e., the Coloured Development Corporation Act). 3/

Powers of Corporation in TerritorySection 2 of the Ordinance authorizes the Corporation to exercise in the Territorythe powers granted by sections 4, 5, and 6 of the principal act. These sectionscover, respectively, the powers of the Corporation in general; the adjunct powerof the Corporation to let buildings and invest surplus moneys; and its power to"safeguard" its investments by taking over Coloured businesses by fiat.Appropriation of money for use in TerritorySection 4 provides for the appropriation of funds for use in the Territory. Thisseems to be required by section 26 bis of the Act, which, in a rather obscurelyphrased provision, indicates that the Legislative Assembly must fund theCorporation's activities in the Territory.Miscellaneous provisionsThe Ordinance provides for reports to be made to the Administrator on theCorporation's activities in the Territory; empowers the Administrator to issueregulations; and exempts the Corporation from territorial taxes. 4/1/ Added by Act No. 98 of 1965, sction 15. ?/ Act No. 4 of 1962.Sections 1, 3.Sections 5, 6, 7.

- 223 -Coloured Development Corporation Powers in the Territory OrdinanceTechnical supplementGeneralThe Coloured Development Corporation Act was not made applicable to theTerritory. Nor, it appears, was Act No. 98 of 3965, which added section 26 bis tothe principal Act. However, South African courts would recognize the lattersection as validating any ordinance issued under it.DefinitionsThe definition of "Coloured (person)" in section 1 reflects the problems of racialclassification which existed in the Territory in the absence of an effectivepopulation registration scheme. "Coloured" means a person other thana white person or a Native, who generally passes for a Coloured and mixes withColoureds, but not any person who, although in appearancea Coloured, generally passes for a Native ....This definition in turn necessitates definitions of a "Native" (a member of a nativerace or tribe of Africa or one who usually passes as such) and of a "white person"(one who by appearance is "obviously white", mixes with whites, or generallypasses as white, but not including a person, who, although obviously white inappearance, generally passes for a Coloured).The definition of a "Coloured company" in the Ordinance is similar to that of a"Coloured company" in the Act, except that it is limited to Coloureds resident inthe Territory rather than to Coloureds generally.Section 3 provides, inter alia, that a reference to the State President in section 4(a) of the principal Act shall be deemed a reference to the Administrator when theAct is applied to the Territory.

- 224 -CRIMINAL PROCEDURE ORDINANCENo. 34 of 1963, as amendedGe~eralCriminal procedure in the Territory is generally governed by this Ordinance ratherthan by the South African Criminal Procedure Act, I/ which applies to theRepublic only. The provisions of the Ordinance are, however, generally similar tothose of the Act, and the extensive literature on South African criminal procedurecan, with due caution, be applied to the corresponding provisions of thisOrdinance.In view of the long and complicated nature of the Ordinance, this digest discussesonly a few provisions of special interest.Scope of the OrdinanceThe Ordinance has 21 chapters, preceded by a section containing definitions andanother on the application of the Ordinance to various courts.The chapters cover the following subjects: criminal jurisdiction of courts; publicprosecutions; private prosecutions; arrests; searches, seizures and related matters;preparatory examinations; bail; constitution of superior court.; pre-trial procedure;trial procedure; verdicts; witnesses; evidence; discharge of accused persons;previous convictions; indictments, summonses and charges; punishment; costs,compensation and restitution; appeals; pardon and commutation; and generalmatters.Arrest of a prohibited person without a warrantSections 21-27 deal with arrest without warrant. Section 22 (1)(k) permits a peaceofficer to arrest without warrant anyone reasonably suspected of being a"prohibited person" (in terms of the immigration laws) in the Republic or theTerritory.Searches and seizuresChapter V covers searches and seizures, although it appears that in the Territory,as in the Republic, many substantive laws derogate from the general principles asset out in this Ordinance.Section 42 requires a warrant for police searches. However, section 43 (1) createsan exception to the rule. It authorizes a police officer to search a person, premises,vehicle, etc. without a warrant if he believes en reasonable grounds "that the delayin obtaining a search warrant would defeat the object of the search ...".1/ Act No. 56 of 1955.

Criminal Procedure- 225Section 44 (2) creates an exception to the rule that requires a warrant to enterpremises. Again the requirement is automatically suspended if a police officerbelieves on reasonable grounds "that delay in obtaining a warrant ... would defeatthe object of such a warrant ...".BallSection 112 2/ empowers the Attorney-General, "in the interest of theadministration of-justice or for the safety of the public or the maintenance of

public order", to issue an order that any person arrested for any offence shall notbe released on bail or otherwise before he has been either sentenced ordischarged. And if any person who has been arrested applies for bail and thepublic prosecutor informs the judge or magistrate to whom the application hasbeen made that the matter has been referred to the Attorney-General for possibleissuance of an order denying bail, the arrested person shall be held without bailfor up to 14 days pending the decision of the Attorney-General; if at the end of thetwo weeks the Attorney-General has not issued such an order, the court ormagistrate may entertain a new request for bail. 3VSubsection (2) permits a person detained without bail to apply to thecourt or magistrate, giving notice thereof to the Attorney-General, for release onbail if, after 90 days, no evidence has been presented as to his alleged offenceeither at a preparatory examination or at a trial. Subsection (3) empowers thecourt or magistrate to deal with such application at its discretion.Special criminal courtSection 122 ._/ empowers the Attorney-General to require the senior judge of theSouth-West Africa Division of the Supreme Court to create a special criminalcourt (like that created for the 1956 Treason trial" to try persons accused oftreason, sedition, public violence or contravention of section 11 (a) or (b) of theSuppression of Communism Act V if the Attorney-General believes that it is "inthe interest of the administration of justice...". The Court shall consist of eithertwo or three judges of the Supreme Court, who must reach a unanimous decisionfor either conviction or acquittal.Summary trial in superior courtSection 125 bis / empowers the Attorney-General to direct that an accused betried summarily in a superior court if the Attorney-General believes that there isdanger of interference with or intimidation of witnesses or that it is "in the interestof the safety of the State or in the public interest...". In such a case the accused istried without a preparatory examination and according to the procedure applied incriminal cases in magistrates' courts.2/ Substituted by Ordinance No. 3 of 1969, section 9.3 Subsections (1), (5).Substituted by Ordinance No. 35 of 1965, section 15. A/ ct No. 44 of 1950, q.v.6 Added by Ordinance No. 35 of 1965, section 16.

Criminal Procedure- 226Recalcitrant witnessSection 187 7j/ empowers any court to ser.d to prison for up to one year anyperson present in court who refuses, without justification,.to give evidence in acriminal case by refusing either to be sworn, to answer quest.$ons, or to producethings required by subpoena. Such a recalcitrant witriss may be sentenced tosuccessive terms of not more than one year until he eves the required evidence oruntil the proceeding is concluded or the court 4cides to remit his punishment.Evidence derived from inadmissible confessions

Section 220 authorizes any court to admit into evidence testimony as to factswhich have become known to the witness (such as a police officer) who testifiesthereto only as a result of a confession which itself is not admissible (e.g., becauseit was obtained by force, fraud, etc.).Immunity for prosecution witnessesSection 229 8/ provides that whenever the prosecutor indicates that, in hisopinion, a prosecution witness has been an accomplice-in the commission of theoffense charged or that he will be required to make replies which will tend toincriminate him, the witness shall be compelled to be sworn and to answer thequestions which incriminate him. If he answers them fully, to the satisfaction ofthe court, he shall be granted immunity by the court from prosecution for theoffence charged.Joint trialsSection 309 2/ authorizes the joint trial of persons charged with "separate"offenses committed at the same place and at "about" the same time if theprosecutor informs the court that a evidence which is, in his opinion, admissibleagainst one accused is also, in his opinion, admissible against the other accused.WhippingSections 327-333 deal with whipping as a punishment.In general, whipping may be imposed only for crimes of indecency or whenauthorized by specifi, statute, and it is limited to 10 strokes. A young male underthe age of 21 may be sentenced,for any offence, "to receive in private a moderatecorrection of whipping not exceeding ten cuts.... The parent or guardian of such ...person shall have the right to be present". 0/Whipping may not be imposed on persons in poor health, women, men over 50, oron psychoneurotics or psychopaths. If all or part of a sentence of whippingimposed by a superior court cannot be carried out by reason of the poor health Ofthe convict concerned, the court may either remit the sentence @r sentence theconvict to not more than 12 months' imprisonment (or additional imprisonment) ialieu of the whipping. 1l./T/ Substituted by Ordinance No. 35 of 1965, section 20. V Substituted byOrdinance No. 4 of 1968, section 10. l Substituted by Ordinance No. 4 of 1968,section 13.Sections 32T-29, 331 (a).L1 Sections 330, 331 (b), 332.

Criminal Procedure- 227Restrictions on former convictsSection 341 empowers the Administrator to serve a sort of "banning order" on aformer convict on completion of his prison term if he has been sentenced to prisonwithout option of a fine for a crime of indeoency. The order may prohibit himfrom being in a specified area for a period commenting within So days of hisrelease and ending not more than six months after his release.oyver of an appeals court as to punishment

Section 356 (5) L2/ empovers an appeals court to impose a more severe sentencethan that imposed by the trial court or to impose another punishment in lieu of orin addition to that imposed by the court below.12/ Subsection substituted by Ordinance No. 35 of 1965, section 40 (b).

- 228 -Criminal Procedure OrdinanceTechnical supplementThe merits of the South African system of pretrial interrogation were seriouslyquestioned by Mr. Justice Hiemstra (the Judge in the terrorism trial of Tuhadeleniand others) in an article proposing "Abolition of the Right nbt to be Questioned."1This was followed two years later by "Abolition of the Right not to beQuestioned: A Report on Progress." 2/ His proposals drew some sharp rejoinders,including "Ihe Right not to be Questioned" by a pseudonymous "Legis" 3/ and"Pre-Trial Criminal Procedure in Scotland: A Comparative Study." h/In 1970, Prof. Dugard suggested that it might be preferable to move towards aninquisitorial system which provided adequate safeguards rather than to continue apurportedly accusatorial system flawed by gross exceptions in law (the "180-daylaw" and section 6 of the Terrorism Act, inter alia) and in practice. 5/This academic issue became a practical one several years ago when thegovernment created a Commission of Enquiry into the Law of Procedure andEvidence in Criminal Proceedings to look into, inter alia, the system of pretrialinterrogation. As a result of this and other studies, a new draft Criminal ProcedureBill, to apply to both South Africa and Namibia, was published late in 1971.However, the Bill was not introduced at the next session of Parliament, and nomore has been heard of it.BailPresent section 112 replaces a temporary provision substituted for theoriginal section 112. The temporary provision empowered the Attorney-General,in the interest of public safety or order, to order that any person arrested on acriminal charge be held for 12 days without release on bail or otherwise. Thegradual erosion of the right to bail in Namibia parallels closely that in theRepublic. Such changes form part of the background for the proposed changes,referred to above, from an accusatorial to an inquisitorial system of pretrialprocedure.Special criminal courtA special criminal court may be established to try not only the crimeslisted, but also incitement, attempt, or conspiracy to commit any of the listedoffences. Neither terrorism nor sabotage is included in the list, perhaps becausethe section was adopted to apply to a particular situation and has not beenemployed since./ (1963) 80 S.A.L.J. 187.gl (1965) 82 S.A.L.J. 85.3 Ibid., 405._/ ilson, ibid., 69, 192.

51 "1570 Revisited. An Examination of South African Criminal Procedure andthe'Hiemstra Proposals'," (1970) 87 S. A.L.J. 410.

Criminal Procedure, T.S.- 229If a special court fails to reach a unanimous decision, a new court is selected toretry the case, consisting of Judges who did not sit on the previous special court.It appears that regular superior court procedure is followed in trials before aspecial court.Xmary trial in superior courtThe importance of a preparatory examination, which can be omitted under aection125bis, is that it enables the accused to learn the general nature of the case againsthim. There are, of course, certain motions by which the accused can obtainparticulars in the absence of a preparatory examination -provided that he hascompetent legal counsel.Subsection (4) made this section applicable to offences committed before as wellas after adoption of the ordinance: again, the section was undoubtedly adopted ata time when particular persons to whose trial the government wished to applystreamlined trial procedures were already in custody. However, unlike specialcriminal courts, which are apparently in disfavour, summary trial in a superiorcourt has become virtually the norm (at least in South Africa) when seriouspolitical offences are involved.Recalcitrant witnessThis section must be read with section 229 to understand its full significance.The section confers jurisdiction on magistrates to impose a full year's sentence onpersons who refuse to give evidence.A sentence imposed on a witness under this section shall be served before asentence imposed for any substantive offence. An appeal may be taken from thesentence as from any other.Evidence derived from inadmissible confessionsMany states apply the general rule that true or believable evidence may beintroduced in a criminal trial although it was obtained by improper means. Thesafeguard against improper means in systems which allow such evidence must befound in administrative control of the police and/or in civil or criminal litigationagainst the police. In some countries, in the absence of other effective controlover improper police activities, the courts have attempted t~o curb improperpolice interrogation by excluding all evidence which has been derived, howeverremotely, from information improperly obtained.For a discussion of the equivalent provision in the South African CriminalProcedure Act, see Campbell, "Illegally Obtained Evidence: a Reappraisal". // (1968) 85 S.A.L.J. 246.

Criminal Procedure, T.S.- 230Immunity for prosecution witnesses

Present section 229 replaced an earlier section 229. That earlier section 229 wassubstituted for the original section 229 by Ordinancq No. 35 of 1965, section 29.The two earlier versions of section 229 applied only to persons deemed to beaccomplices; the latest version also applies to persons, not accomplices, whosereplies might tend to incriminate them.The immunity granted by the section is limited to prosecution for the offencecharged only. Thus--a witness granted immunity in a sabotage case, for example,would not be immune to prosecution for terrorism or malicious mischief based onthe same facts, nor would he be immune from prosecution for further offencesdiscovered as a result of his testimony.Immunity may be withdrawn if a prosecution witness does not answer furtherquestions concerning the same offence if the case is re-opened or, it seems, ifadditional persons are subsequently tried for the same offence.Section 230 1/ provides that the evidence given by a person granted immunityunder section 229 is not available against him if he is subsequently prosecuted"for an offence referred to in that section" (emphasis added); but it may be usedagainst him if he is tried for perjury arising out of that evidence.Joint trialsThe original version of this section authorized joint trials of persons charged withseparate offences in connexion with the "same transaction".It appears that a provision of this type was introduced in Souti Africato overrule a court decision which held that a prosecutor could not try jointly twodrivers, both accused of negligent driving resulting in a collision with each other,since two separate offences were involved. However, today it is used to authorizemass trials of alleged political offenders. (South Africa, it should be noted, has along tradition of mass trials of government opponents; but before the lawpermitted the joint trial of persons charged with separate offences, a conspiracy orcommon crime had to be alleged -- and proved.)/ Substituted by Ordinance No. 4 of 1968, section 11.

- 231 -DELEGATION OF POWERS OIRDINANCE,No. 21 of 1960By this Ordinance the Legislative Assembly provided for the transferof certain administrative powers from terrritorial authorities to the South AfricanGovernment.The Ordinance empowers the Administr-ator-n-Executive-Commtteo todelegate to the South African Secretary fcor South West Africa I/ any powersconferred upon the Administrator-in-Executzive-Committee by ordinance,proclamation or regulation, except powers to issue proclamations or regulations.Since the transfer of most legislative and administrative powers to Pretoria by theSouth-West Africa Affairs Act of 1969, 2/ it would appear that this Ordinance isobsolete in fact, ailthough still-on the books.I/ Or to any other officer under his contwol. Section 1 (3).2 Act No. 25 of 1969, sections l, 19.

- 232Delegation of Powers Ordinance Technical supplementAdinistrator-in-Executive-CommitteeThe administration of the Territory is vested in the Administrator-inExecutive-Committee except as specified powers are expressly conferred upon theAdministrator acting individually. See Digest of South-West Africa ConstitutionAct, No. 39 of 1968, "Powers and Functions of the Administrator".

- 233 -ESTABLISHMENT OF AN ELECTED COLOURED COUNCIL FOR SOUTHWEST AFRICA ORDINANCENo. 29 of 1966, as amendedgeneralThis Ordinance appears to provide an attenuated form of political selfexpressionfor the Coloureds of the Territory, who, like the Coloureds in the Republic, do nothave a "homeland" although they are segregated into specific areas.The effective date of this Ordinance was held up for some years;it was, indeed, substantially amended by proclamation of the State President in1971 1/ before it became effective. Until elections were held and the ElectedCouncil came into office in 1974 ?/ a carefully selected Coloured Council existedunder the provisions of an earlier law, 3/ which was repealed by the presentOrdinance.The discussion below deals with the new Ordinance as amended.DefinitionsSection 1 defines a Coloured person as "a person who is not a white person or aNative and who is generally accepted as a Coloured person...".Elected Coloured CouncilSection 2 establishes an Elected Coloured Council, consisting of Colouredpersons only, of whom five are elected by Coloured voters and six are nominatedby the Administrator.Registration of votersSections 3-7 deal with the registration of Coloured voters in order to electmembers of the Council.Section 4 makes registration to vote compulsory, under pain of fine orimprisonment, for all adult Coloureds who are not statutorily disqualified. Section7 reinforces this requirement by providing for the registration of illiterates and ofthe physically infirm and disabled.Section 5 lists statutory disqualifications , which parallel closelyt1ose under the Electoral Consolidation Act. 4/ In particular, the Ordinance asnow amended prohibits registration or voting by any person who has beenconvicted Wjder the Terrorism Act 5/ or under the Suppression of CommunismAct 6/ if he is sentenced to imprisonment without the option of a fine.1/ Proclamation No. R.158 of 1971, South African Government Gazette No. 3191,9 July 1971.2/ See Proclamation No. 170 of 1974, Govt. Gazette No. 4384, 13 September1974. 3/ Ordinance No. 34 of 1961.

h/ Act No. 46 of 1946, as amended. Act No. 83 of 1967, as amended.Act No. 14 of 1950, as amended.

Establishment of Elected Coloured Council- 234Delimitation of electoral divisionsThe provisions of section 8 for delimitation of electoral divisionsare similar to those in the territorial constitution. I/ In particular, subsection (2)(b)provides that any electoral division may contain up to 15% more or less electorsthan the quota determined by dividing the number of registe.ed voters by thenumber of seats to be filled. Application of the Electoral Consolidation ActSection 9 makes specified relevant sections of the Electoral Consolidation Actapplicable to elections for the Elected Coloured Council, indicating changes to bemade in order to apply the law. General provisions affecting the CouncilSections 10-16 cover various matters affecting the Council, such as qualificationsof members, term of office, vacation of seats, etc. Section 16 protects Councilmembers from liability as to matters brought before the Council and for moststatements made in connexion therewith. Functions of the CouncilSection 20 indicates that the Council has no real powers, its only role beingadvisory. It may:advise the Administrator on matters affecting territorial Colouredswhen he requests such advice;make renommendations to the Administrator on Coloured interests; and serve asliaison between the Administrator and territorial Coloureds.Subsection (2) provides that, not by right, but "by mediation of the Secretary forSouth West Africa" the Council shall have "direct access" to the Administrator asto matters affecting Coloureds in the Territory. Council committeeThe Ordinance makes provision for Council's Committee, composed of threemembers elected by the Council and two appointed by the Administrator, butgives it no functions. 8/RegulationsSection 21 empowers the Administrator to make regulations as to all phases of thefunctioning of the Council.7] Act No. 39 of 1968, as amended. / Section 17.

- 235 -Establishent of an Elected Coloured Council for South West Africa OrdinanceTechnical supplementgeneralThe concept of a temporal "government" without any territorial jurisdiction J&inherently incredible. In fact, the projected "Elected Coloured Pouncil" is notelected (that is, a majority of its membership is appointed by the Administrator)and has no legislative, but merely advisory, functions. (See below).The State President's power to amend the Ordinance is found in the 1968 SouthWest Africa Constitution. That grants him plenary legislative powers as to all

subjects (specifically including Coloured affairs) 2/ which are outside thecompetence of the territorial Legislative Assembly.DefinitionsThe relatively crude exclusionary definition of a "Coloured person"depends in turn on the definitions of "white person" and "Native" since aColoured person is any one (except a burgher of the Rehoboth Gebiet) who doesnot fall under either of the other definitions: A "white person" according to theOrdinance is "any person who in appearance obviously is a white person or whois accepted as such...", and a "Native" is "any person who is a member of a Nativerace or tribe of Africa and is generally accepted as such ...".These definitions are virtually identical with those found in the earlier ColouredCouncil Ordinance of 1961 and similar to definitions found in earlier South Africalegislation; most of the latter are now replaced by references to race determinationunder the Population Registration Act. 3/ Officially there is no racial classificationin the Territory (see discussion in the Identity Documents in South-West AfricaAct). There is admittedly, however, administrative population classification: e.g.,Herero, Kavango, Baster, Coloured, etc. It would seem that the differencebetween racial classification and population classification is purely semantic, asthe definition of "Coloured person" in the Ordinance indicates.It may be anticipated that this Ordinance and others will eventually refer to the so-called population classification under the South West Africa Identity DocumentsAct once it is fully implemented in the Territory rather than continue with thesedefinitions.ReMistration of votersSection 4 was substantially amended by the 191 proclamation to makeregistration, originally facultative, compulsory. The penalty for failure to registeriW a fine of not more than RB50 ($58) or imprisonment for not more than threemonths.1/ Act No. 39 of 1968, section 38 (1), substituted by Act No. 25 of 1969, section17. 2/ See section 22 (1), as amended.3/ Act No. 30 of 1950, as amended.

Establishment of Elected Coloured Council, T.S.- 236Even the tone of section 7, as amended, which provides for registration ofilliterates, is peremptory.Compulsory registration is essential to delimit the electdral divisions (seedelimitation of electoral divisions) since delimitation isbased on the jkmber ofregistered voters, not on the number of Coloureds in ihe Territory. is possiblethatcompulsory registration may also-serve to discourage (bloureds from boycottingthe elections; but it would seem that compulsory voting would be far moreeffective for that purpose, and the ordinance doed not include a requirement tovote.Delimitation of electoral divisionsThe 15% "loading factor" is less justified in this Ordinance than it is in theterritorial or South African constitutions, since territorial Coloureds are all

segregated into a limited number of relatively densely populated areas and notscattered, as are the whites, between vast, sparsely populated rural a-eas andcompact urban districts.General provisions affecting the CouncilAlthough section 16 appears to protect members of the Council from liability fortheir actions and speech while acting in their official capacity, subsection (3)limits their protection considerably: They are liable for "anything said or done ...in regard to the 3outh African Senate, the House of Assembly, a provincialffegislative council of the Republic, the Legislative Assembly of South WestAfrica, a court of law or a statutory body or any member thereof or an officer ofthe Public Service in respect of which ... fhey7 would, but for the said provisions5f section 167 have been liable". Interestingly, this proviso omits reference to theState President, although it is made an offence to insult him.Council's committeeIn the Republic, the provinces, the Territory, and even the African homelands theequivalent of. the Council's Committee (however it may be denominated) is anexecutive body with some administrative powers. Obviously the Council'sCommittee cannot play such a role when there is nothing to administer.

- 237 -ESTABLISHMENT OF LOCAL GOVERNMENT IN COLOUREDTOWNSHIPS ORDINANCENo. 35 of 1965This Ordinance permits Coloureds to exercise some advisory oradministrative functions in respect of the Coloured townships where they live. Itcomplements or supplements in part the Townships and Division of LandOrdinance i/ adopted in 1963 to consolidate territorial laws relating to local urbangovernment.The Ordinance is framed in terms of alternative bodies ("consultativecommittees", "management committees" or "local authorities"), with differingfunctions, which may be established by the Administrator for different townships.Consultative committeesA consultative committee shall be composed entirely of residents of the Colouredtownship for which it is created. The Administrator determines byregulation how its members are to be selected. /Section 2 (3) (a) requires a white municipality or village managementboard ("local authority") having jurisdiction over a Coloured township with aconsultative committee to consult with that committee as to all matters specifiedin regulations issued by the Administrator under section 4. The municipality ormanagement board is required to give "due consideration" to any suggestions orcomments of the committee.Management committeesA management committee is also composed of residents of a Coloured townshipselected in accordance with regulations issued by the Administrator. It mayexercise whatever powers, functions and duties of the white municipality or

village board are assigned to it under regulations issued by the Administrator; butit shall act subject to the "supervision and control" of the white local authority. 3/Establishment of local authorities for Coloured townshipsSection 3 provides that the Administrator may appoint a committee to investigateand report on the desirability of appointing a local authority for any Colouredtownship which has a management committee; and after consideration of thereport he may establish such an authority. The section fails to indicate thecomposition, powers, functions or duties of such an authority. Nowever, it may beinferred that it would be composed of Coloureds from the township and wouldhave somewhat more important and extensive powers, functions and duties than amanagement committee, so that it would replace the white local authorities, atleast in part.1/ Ordinance No. 11 of 1963.2/ Sections 2 (2), 14 (1)(a).V Sections 2 (2),(4), 14 (1)(a).

- 238 -Establishment of Local Government in Coloured Townships 0rAinc&Technical supplementGeferalThe Administrator establishes consultative committees and managementcommittees by notice in the territorial Gazette, and he may disestablish them inthe same way. I/Consultative committeesIt is clear from section 2 (3) (a) that a white local authority is not bound by anycomment or suggestion of a consultative committee.Section 2 (3) (b) provides that if a consultative committee does not makecomments or suggestions within 30 days on any matter referred to it, it ispresumed not to have any to make. (Coloured) local authoritySection 3 appears to constitute more an expression of vague intentionfor the future than an actual blueprint of imminent self-government. RegulationsSection I empowers the Administrator to issue regulations on virtually everyphase of every subject comprehended by the Ordinance.I/ Section 2 (1).

- 239 -LIQUOR ORDINANCENo. 2 of 1969(Never legally in effect in Namibia),Ge eralThis Ordinance repealed all existing ordinances and proclamationsrelating to the licensing of the sale and supply of alcoholic beverages in theTerritory. It largely consolidates the repealed legislation in slightly amendedform.It contains special restrictions on the supply of liquor to Africans and on theissuance of liquor licenses in respect of premises located in the Rehoboth Gebiet

or in Coloured townships. There appear to be no general restrictions on the supplyof liquor to nonwhites other than Africans.Supply of liquor to AfricansSection 90 provides that liquor is not to be sold or supplied to "Natives" and that"Natives" are not to have or deal in liquor except as provided in section 22 of theGeneral Law Amendment Act of 1967 1/ and regulations issued thereunder.Transfer of licenses to"prohibited areas"Section 60 (1) prohibits the transfer of a liquor licence int6 or within a "prohibitedarea" without written permission of the Administrator, which maybe conditioned as he "deems fit". 2/Subsection 44) defines a "prohibited area" as any place:(i) in, or within half a mile of the boundary of, any native locationor village;(ii) in, or within three miles of the boundary of, any other area "setapart ... for the occupation of Natives" (i.e., presumably nativereserves or "homelands"); or(iii) in, or within half a mile of the boundary of, any area set apartfor Coloured occupation.Liuor licences in the Rehoboth GebietSection 18 (1) makes the ordinance and all amendments applacable to theburghers of the Gebiet. However, a major proviso to this subsection provides thatthe right to renew or obtain a liquor licence or to have a financial interest in aliquor licence in respect of premises in the Gebiet is restricted to burghers orassociations of burghers, except as the Administrator may otherwise provide.J Act No. 102 of 1967, .V.Y Subsection (3) (conditions).

Liquor Ordinance- 240Subsection (2) provides that no liquor shall be sold or supplied under suek alicence to any white person.Liquor licences in Coloured townshipsSection 149 (1) provides that only Coloureds (or associations of Coloureg8) marobtain or renew a liquor licence or have a financial interest in a liquor lence inrespect of premises situated in an approved township for Coloured persons, exceptas the Administrator may otherwise provide.Subsection (2) provides that no liquor shall be sold or supplied under such alicence to anyone other than a Coloured person.Application to the Eastern Caprivi ZipfelThis Ordinance was not made applicable to the Eastern Caprivi Zipfel. However,Proclamation No. R. 129 of 1971 3/ makes section 71 (relating to liquor licencesfor "non-Native" clubs in native reserves) applicable to that, area.V/ Government Gazette No. 3132, h June 1971.

- 241 -MINES, WORKS AND MINERALS ORDINANCE

No. 20 of 1968, as amended(Never legally in effect in Namibia)ftneralThis Ordinance, which runs to about 50 pages of English text (and issupplemented by detailed regulations), consolidated and replaced earlier ordiances bearing the same title. I/It establishes the basic rules governing the Territory's most importantindustry, mining.Scope of the OrdinanceThe Ordinance is divided into seven chapters, following three sectionscontaining definitions and other "preliminary" material. The chapter titles, whichare not always fully descriptive of their contents, are, in abbreviated form, asfollows: administration; prospecting; mining; prospecting and mining in gameparks and certain 'onwhite areas; conflicts between prospecting and miningclaimholders and owners of private property; survey and registration of miningareas; and general and miscellaneous.Scheme of the digestThe digest summarizes very briefly the provisions of the Ordinance whichare typical of mining legislation generally. It concentrates on those provisionswhich are racially discriminatory of otherwise peculiar to Namibia or to theinstitution of "separate development".The digest incorporates, without specific notes to that effect, amendments madethroughout the text of the Ordinance by Proclamation No. R. 89 of 1969(Republic). 2/Right to prospect and mineSection 2 (1) vests the right to prospect and mine for preeious and baseminerals within the Territory in the South African Minister of Mines, except thatas to "native reserves" it is vested in the South Africa Bantu Trust. 3/ RepublicProclamation No. 42 of 1969 / supersedes the Ordinance and any other law as tofte mining of base metals in the native reserves of the Territory.I/ See section 3 (1) and appended schedule and section 3 (2) (savings clause).2 Government Gazette No. 2354, 14 April 1969, Schedule 1. 3/ Section 2 (2).Government Gazette No. 2294, 14 March 1969.

Mines, Works, Minerals- 242Administration of mining in the TerritorySection 4 (1) vests control of the Territory's mining industry in the Secretary ofMines, who appoints the chief inspector, other inspectors, the uIningcommissioner, and other officers and employees necessary to enforce theOrdinance. 5-1Sections 5-12, l4 and 15 set out the powers of the various officials referred to insection 4, the penalties for obstructing them or for contravention of the Ordinanceor regulations issued under it, and the procedure for trial of alleged offenders.

Section 13 provides that a prospecting or mining titleholder who is not a residentof the Republic or the Territory must register an accredited resident agent as acondition of his title.ProspectingSection 16 permits prospecting under a prospecting licence anyhere in theTerritory except as otherwise specifically provided by section 1 and Chapter IV ofthe Ordinance, by orders of the Minister or other official issued under theOrdinance, or by other law. 9Sections 19 (1) and 20 (1) make it an offence for aperson to prospector peg a claim unless he has a currently valid prospecting licence. A prospectinglicence is valid for 12 months unless sooner abandoned or cancelled. I/Under section 21 (1) a prospecting licence may be issued to a registeredcompany or to any person over 18 years of age, subject to the followingprovisions:- the applicant must be a resident or have a resident agent; 8/- if the applicant is a woman married in community of property, she mus'have her husband's consent; 9/- if the applicant is a burgher of the Rehoboth Gebiet, his licenceshall be valid in the Gebiet only; 12/- if the applicant is an African, his licence shall be valid only inNative reserve in which is is "lawfully resident"; I/- if the applicant is a Coloured person, his licence shall be validonly as to land "reserved or set apart under any law for the useof the occupation by Coloured persons". 12/Section 4 (2).As to other laws, see Prospecting and Mining - Native Reserves Proclamation,No.of 1969.7 / Section 20 (3).Section 13.j/ Section 21 (1) (i).10/ Section 21 (1) (ii).11/ aid.12/ Thid.

Mines, Works, Minerals- 243Sections 23-27, 29-37, and 39 deal with pegging of claims, beacons, registration,transfer and abandonment of claims, and related matters. Sections 28 and 38 limitthe activities of a holder of a prospecting licence who does not have a mininglicence.W~ning:Section 41 makes it illegal for a person to mine or erect mining works unless hehas a mining title, and section 44 indicates the rights included in a mining title.Sections 42 and 46-48 deal with conversion of a prospecting claim into a miningtitle.

Section 43 provides that mining may not begin on privately owned landuntil the holder of the mining title has entered into a written agreement with theprivate owner as to compensation for the mining to be done and the miningcommissioner has received a copy of the agreement. Holders of mining title mustcommence mining operations within a specified period, normally two years. 13/Sections 51 and 52 deal with problems arising out of overlapping titles.Sections 53 and 59 deal with safety in relation to working and abandoned miningareas.Sections 54-58 deal with subdivision, abandonment, forfeiture and transfer ofmining areas and notification thereof.Exclusive prospecting and mining rightsThe first two sections of Chapter IV deal with exclusive rights to prospect or minewhich may be granted by the Minister. The granting of such exclusive rights issubject to many detailed requirements which must be met by the grantees. i/Rights in game parks and certain nonwhite areasSection 63 prohibits prospecting, pegging claims or mining in any game park, inany area north of the Police Zone which is outside a native reserve, in theRehoboth Gebiet, or in a Coloured area without a special permit issued by theMinister. Section 64 IV prohibits the owner of a claim or mining area in anynative reserve, the Rehoboth Gebiet, or any Coloured area from transferring,ceding, leasing, or otherwise disposing of such claim or area without thepermission of the Minister. The Prospecting and Mining - Native ReserveProclamation of 1969 16/ ,Xow governs prospecting and mining in Namibian"homelands".IS/ Section 49. See also section 50.Sections 60, 61.I / Section substituted by Act No. 47 of 1972, section 8.__l Proclamation No. 42 of 1969 (Republic), q.v.

Mines, Works, Minerals- 244Disputes between private landowners and prospectors or minersChapter V provides a means of determining compensation when a prospector orminer conducts his operations on a private land owner's property and voluntaryagreement cannot be reached as to such compensation.Sections 65 and 66 authorize a prospector to enter privately owned land .Cubjectto exceptions, particularly in section 18) and conduct his operations & s required.Section 67 indicates the objects or activities for which a private landowner maydemand compensation and/or security: inter alia, use of roads, wood, water orland surface; damage to property; diminution of surface value of land; andinterruption of the right of occupation of land. It provides for security for timelypayment of amounts due and for cessation of rights if payments are not madewhen due.Section 68 provides for resolution of disputes as to just compensation or as tointerpretation of terms of a compensation agreement by an ad hoc board ofadjudication (composed of a magistrate and two officials of the Department of

Mines appointed by the Minister on application of the mining commissioner).Section 70 permits a private landowner, on application-to the Minister, to compela miner to buy his farm land if it has been rendered useless by his miningactivities; the price and manner of payment are to be fixed by arbitration. Aprivate landowner may also take civil proceedings in a territorial court against aprospector or miner. 17/Section 71 provides that part of certain fees received by the Department of Minesin reupect of private land shall be paid to the owner of such land.Survey and registration of mining areasThe provisions of Chapter VI are technical, covering the surveying ofmining areas; duties of the Surveyor-General; beaconing of mining areas; repairand erection of beacons; deeds of conversion as to unsurveyed areas; and duties ofthe Registrar of Mining Titles.General and miscellaneous provisionsChapter VII includes,' inter alia, provisions as to offences under theOrdinance; power of officials to enter land; sale of precious metals; export ofminerals; insolvency of claim holders; lapsing of rights under certaincireumstances; payment of wages to labourers; restrictions on underground andnight' ,orkers; and arbitration. Section 95 iQ/ empowers the State President toissue regulations as to most subjects covered by the Ordinance.17/ Section 72.I/ Amended by Proclamation no. 89 of 1969, section 8.

- 245 -Mines, Works and Minerals OrdinanceTechnical supplementScheme of the digestThe rubrics of the digest follow generally the titles of the chapters of taeOrdinance.Proclamation No. R. 89 of 1969Proclamation No. R. 89 of 1969 was issued to implement section 19 of theSouth-West Africa Affairs Act of 1969.1/ That section transferred administrativecontrol over mining and minerals, as well as 24 other subjects, from the territorialAdministration to the appropriate departments in Pretoria. The Proclamation, interalia, substituted "Minister of Mines" for "Administrator" generally throughout theOrdinance; substituted "Secretary for Mines" for "Sccretary of the Territory";substituted "chief inspector" or "mining commissioner" for "Director of Mines";substituted "Registrar of Mining Titles" for "Registrar of Deeds"; substituted"Department of Mines" for "Administration" and "Mines Division"; substituted"Mining Titles Office" for "Deeds Registry"; substituted the South AfricanGazette for the territorial Gazette; and substituted a new section 4 for the originalsection.Right to prospect and mineThe significance of the exception in section 2 (2) is not entirely clear, but it wouldappear that the provisions of the Ordinance may not apply to land in the nativereserves. To the extent that Proclamation No. 42 of 1969 supersedes the

Ordinance, this is clearly the case. Since that Proclamation was issued underauthority granted to the State President by section 14 of the Development of Self-Government for Native Nations in South-West Africa Act, 2/ it is clear that itsprovisions may be extended to prospecting for other than base metals and tomining (which is mentioned in the title, but not in the text of the Proclamation).Reference has been made in the newspapers 3/ and in conversations with peoplefrom the Territory to the decision of the Administration that foreign miningcompanies operating in the Territory should make up to half their shares availableto local capital. No official ruling to that effect has been located, but it has beenreferred to so frequently by knowledgeable persons that it must exist, or haveexisted prior to the transfer of control of mining to the South African Departmentof Mines. There is no indication whether this policy was ftntinued by the SouthAfrican authorities.i/ Act No. 25 of 1969.2/ Act No. 54 of 1968.3/ See Windhoek Advertiser, editorial, 23 January 1968.

Mines, Works, Minerals, T.S.- 246ProspectingSection 18 prohibits prospecting or pegging claims in or under or withina specified distance of, inter alia, municipalities, locations, public roads, railroads,airfields, cemeteries, land used for governmental or other public purposes, landunder cultivation, springs, reservoirs, waterworks or watetcourses, kraals, or otherbuildings or structures.The reference in section 21 (1) to companies entitled to prospecting licence. mustnow be read as a reference to companies registered under the South AfricanCompanies Act, No. 61 of 1973. Its predecessor Act / brought under SouthAfrican law companies then registered in the Territory under territorial law; andthe present Companies Act continues South African control over companies doingbusiness in Namibia.EX61&vglp prospecting and mining rightsThese two sections restrict the general principle, expressed in section 16(1) thatthe holder of a prospector's licence may prospect anywhere in the Territoryoutside municipalities and other specific areas forbidden to all mining activity bysection 18.Although the wording of sections 60 and 61 does not in any specific way referto sections 63 and 64, which govern rights in game parks and certain non-whiteareas, the four sections are grouped together in chapter IV of the Ordinance. It ispossible to infer that exclusive rights to prospect and mine may be granted ingame parks and non-white areas which come within the provisions of sections 63and 64.Section 62 provides that a person must have a prospector's or miner's licenceunder section 60 or 61 in order to prospect or mine below the high water mark onthe sea coast.Rights in game parks and certain non-white areas

Although the prohibition of section 63 is written in general terms, it would appearthat it applies to white persons and registered companies only: that sectionspecifically exempts from its requirements burghers of the Gebiet and Coloured.persons prospecting or mining in their own areas, while section 21 (I) (ii) holdsthat they may prospect only in their own areas. Moreover, section 63 refers onlyto areas beyond the "Red Line" that are outside a native reserve, while section 21(1) (ii) limits the rights of Africans to prospect to the areas where they are"lawfully resident" - i.e., within a native reserve.When this Ordinance was drafted, there was some land beyond the Police Zonewhich was nevertheless outside any native reserve. With the redefinition of"home. land" boundaries under the Native Nations Act, the gaps between variousreserves In the north have disappeared, except the thin strip of probablydiamondiferous sand between the Kaokoveld and the Atlantic.4/ Act No. 46 of 1926, made applicable to the Territory by settion 228A, added iyAct No. 90 of 1969, section 9.

Mines, Works, Minerals, T.S.- 24TDiSputes between private landowners and prospectors or minersThis chapter provides the mechanism for effectuating the implicitphilosophy behind the Ordinance: that territorial well-being debends upon thedevelopment of mining, which must not be balked by private landpvners. In&ffect the chapter provides for a kind of eminent domain exerciied on behalf ofThe mining industry. It appears that such eminent domain is exercised only as toXurface rights, which "belong" to the private landowners: subsurface rights ireconsidered to be vested in the state, which may dispose of them separately fromthe surface rights.It should be noted that section 1 (xxx) defines "owner" in relation to private landlocated in the Rehoboth Gebiet as the magistrate of Rehoboth in his capacity asKapitein of the Rehoboth Community; in relation to land located in a nativereserve, it defines the "owner" as the South Africa Bantu Trust. Fees shared undersection 71 with the private land owner as to land reserved or set apart for the useof and occupation by Coloureds are to be paid into "any trust fund" establishedunder any law in respect of such land.

- 248 -PROHIBITION OF MIXED MARRIAGES ORDINANCE No. 19 of 1953generalThis Ordinance prohibits marriages between "Europeans" and "non-Europeans".Prohibition of mixed marriagesSection 1 (1) prohibits the solemnization of any marriage between a European anda non-European within the Territory and provides that any such purportedmarriage shall be null and void.Section 1 (2) provides that the marriage outside the Territory of a man domiciledwithin the Territory is null and void if it would be invalid under this Ordinance ifperformed in the Territory. Provisos

Section 1 (1) (a) (i) provides that a marriage otherwise void under the Ordinanceshall be deemed valid if performed in good faith by a marriage officer and if noneof the parties has made any false statement in contravention of section 4.Section 1 (1) (a) (ii) provides that an otherwise invalid marriage shall be deemedvalid if the party whose racial classification is questioned either appears to be amember of the correct racial group or habitually consorts with members of thatracial group as a member thereof.If a marriage otherwise void under this Ordinance is performed in good faith, thechildren thereof are deemed legitimate. l/ Solemnization of mixed marriage anoffenceSection 2 makes it an offence for a marriage officer knowingly to solemnize amarriage prohibited under the Ordinance. Presumption as to raceA person is, under the Ordinance, presumed to be of the race he or she "obvious,appears to be "unless and until the contrary is proved". 2/ / Section 1 (1) (b).?J Section 3.

Prohibition of mixed Marriages- 249False statementsA person who knowingly makes a false statement to a marriage officer as to therace of any person who seeks to have his or her marriage solemnized by theofficer is guilty of an offence, which is punishable as perjury. V/3/ Section 4.

- 250 -Prohibition of Mixed Marriages OrdinanceTechnical supplementGeneralThis Ordinance is virtually a verbatim reproduction of the Prohibition of MixedMarriages Act, l/ and should, in the absence of law to the contrary, be construedin the same way.ProhibitionIt appears from the language of section 1 that marriages in contravention of theOrdinance (at least if they do not fall under one of the provisos) are void ab initioand do not require any court determination to that effect. However, in order todetermine whether a marriage is in contravention of the Ordinance, a courtdetermination of the race of one or both of the spouses may be necessary.The reason for applying section 1 (2) only to marriages of males domicilem in theTerritory is not entirely clear. If the marriage in question involves a territorialdomiciliary and a foreign citizen, then the limitation of section 1 (2) probablyreflects South African rules governing the citizenship and domicile of marriedwomen. However, if a man and a woman, each of a different colour and eachdomiciled in the Territory, were to marry each other outside the Territory (and theRepublic), it would appear that the marriage being void as to him, would also bevoid as to her under this subsection.Provisos

The language of the provisos - which technically apply only to subsection 1 (1) -appears to indicate that a mixed marriage performed in good faith is not void abinitio. Presumably, however, it is voidable on the grounds of its conflict with theOrdinance, or at least with the public policy which the Ordinance seeks toimplement. While it would seem that such a marriage should not be voidable atthe instance of the state - which has many other means at its disposal of makingsuch a marriage unviable - it would, following South African precedents, besubject to annulment based on mistake as to a material fact in entering themarriage contract. It should be noted that proviso 1 (1) (b) refers to a judgementby a "competent court" declaring invalid a mixed marriage performed in goodfaith.The proviso that children of a mixed marriage entered into in good faithare legitimate follows South African holdings that children of putative marriagesare legitimate. It does not, of course, indicate what their racial classificatiGe willbe; but South African experience suggests that in such a situation children alwaysreceive the less desirable classification, in order to preserve the "purity" of thewhites.Although, as indicated above, the provisos, by reason of their position at the endof subsection 1(1), apply only to that subsection, they mustI/ Act No. 55 of 1949.

Prohibition of Mixed Marriages, T.S.- 251nevertheless, logically, be read into subsection (2). A marriage which, in terms ofsubsection (2), "cannot be solemnized in the Territory in terms of subsection(1)" presumably does not include a marriage which, although contrary to theprovisions of subsection (1), is entered into in good faith as defined in theprovisos.lolemnization of mixed marriage an offenceIt would appear that a couple whom a marriage officer refused to marry for fearthat he would thereby contravene the Ordinance might seek a mandatoryinjunction or writ of mandamus to compel him to perform the ceremony. Thecourt from which the writ was sought would have to determine the race of thewouldbe marrieds in deciding whether to issue the writ. Such legal proceedingshave been frequent in South Africa. However, social and legal pressures againstcontact across the colour line, and the increasingly rigid stratification by colourunder successive modifications of the Population Registration Act, limit thenumber of persons whose marriages might be questioned.Presumption as to raceThe wording of this section follows closely South African phraseology of thesame era. The experience in the Republic, where Passing" for white is anobsessive concern of the whites, is that there is no entirely satisfactory definitionof race under which all non-white accession to the privileged class ofwhites can be completely shut off. The alternative test of "general acceptance andrepute" (see Immorality Proclamation) ?_ proved to constitute a large loophole foroff-white friends of "liberal" whites in the Republic.

/ Proclamation No. 19 of 1934.

- 252 -REHOBOTH GEBIET AFFAIRS ORDINANCENo. 20 of 1961GeneralThis Ordinance purportedly repealed the Proclamation I/ Rhich abrogated the1923 Agreement between the Administrator and the Rehoboth Community 2/, asveil as subsequent legislation affecting the Rehoboth Gebiet.However, it appears that this Ordinance has not in fact become effective. This wasclearly the case in 1967 3/. In 1968 the Native Nations Act 1./ and the decision inS. v. Bock 5/ made it virtually impossible to revive the 1923 Agreement inanything like its original form.This Ordinance must be read with the 1923 Agreement.Restoration of AgreementSection 3 provides that the 1923 Agreement is restored and effective in itsoriginal form.The same section also provides that laws extended by the Administrator to theGebiet during the intervening years remain in effect in the Gebiet. Under State v.Bock, of'course, all laws which apply to the Territory generally also apply to theGebiet automatically. That decision purportedly superseded section 4 of theAgreement, which provided that laws governing the Territory generally did notautomatically apply to the Gebiet, but had to be specifically extended thereto inorder to apply there. By implication, at least, that decision also purportedlysuperseded this Ordinance to the extent that it restored section 4 of theAgreement.Repeal of intervening lawsSection 2 of the Ordinance repeals various ordinances and proclamationsissued since the Agreement was made, including in particular: the RehobothAffaks Proclamation of 1924 6/, which transferred to the District Magistrate thepower duties, and functions of the Volksraad, Kapitein, and Kapiteinsraad; andsectioms 2, 3, 4, and 8 of the Rehoboth Gebiet Affairs Proclamation of 1928, 7/which, inter alia, established an advisory board for the Gebiet composed ofmembers of the community.1 Rehoboth Affairs Proclamation, No. 31 of 1924, q.v. .? Agreement dated 28September 1923, annexed to Administration of the RehobotjCommunity Proclamation, No. 28 of 1923, q.v. / 1967 South West Africa Survey,p. 54.Act No. 54 of 1968./ 1968 (1) S.A. 370 (S.W.A.), affd., 1968 (2) S.A. 658 (A.D.).See n. 1._/ Proclamation No. 9 of 1928.

Rehoboth Gebiet Affairs- 253Since most of these intervening laws which the Ordinance repeals did not

elclamend the Agreement - they simply adopted new prcvisions which had theeffect of superceding terms of the Agreement - the effect of the repeal of theseintervening laws (if the repeal is effective) is to leave the original Agreementintact*Znterim arrangementsSections 5-8 provide interim arrangements until the 1923 Agreement is restored tofull force and effect, and a Kapitein and Volksraad have been elected.

- 254Rehoboth Gebiet Affairs OrdinanceTechnical supplementGeneralThe full background of the 1923 Agreement, its abrogatiof, and its subsequentattempted restoration by this Ordinance is spelled out in the introduction to thedigest of the Agreement, q.v.According to the 1967 South West Africa Survey, this Ordinance had not beenmade effective six years after its enactment due to internal dissension within theGebiet and the refusal of leaders of the Gebiet to co-operate with Territorial orSouth African authorities. It would appear that the dissension, such as it was,arose out of the dispute between two factions within the Gebiet those whofcvoured cooperation with the authorities and those who favoured non-co-operation and active defiance whenever possible.On 4 June 1971 Government Notice No. R. 953 of 1971 1/ provided for electionof members of the Gebiet Advisory Board in accordance with Proclamation No. 9of 1928; if the Ordinance had been effective, that election would not have beenheld, since the provision establishing the Advisory Board was repealed by theOrdinance. The Advisory Board was still in existence at the end of 19Th.S. v. BockSince this decision postdates the revocation of the mandate, it has never beenlegally in effect in the Territory.A decision on the same issue, found in Universal Distributors (Pty.) Ltd. v.Dickson 2/ thus continues to be legally valid, although South African authoritiesconsider it overruled by S. v. Bock. Universal Distributors holds that lawsapplicable to the Territory generally do not apply to the Rehoboth Gebiet unlessspecifically extended thereto by the Administrator. (This particular limitation onthe general and automatic applicability of laws governing the Territory derivesfrom the proviso to section 4 of the 1923 Agreement, which was not abrogated byProclamation 31 of 1924 or by subsequent territorial legislation.)The Bock case involved the question whether the Motor Vehicle Insurance Act 3/applied to the Gebiet: although the Act had been made applicable to South WestAfrica, the Administrator had not extended its application to the Gebiet inaccordanc, with the proviso to section 4 of the 1923 Agreement. The AppellateDivision, affirming the lower court decision, held the Act applicable on theground that an agreement of the Administrator could not bind Parliament.Although the Parliament sometimes made legislation expressly applicable to theGebiet and had failed to do this in the case of the Motor Vehicle Insurance Act,

the Appellate Division concludei according to a prominent commentator, "that thelegislature, when it spoke of the territory of South West Africa simpliciter, did notmean to exclude the Gebiet". 4/1 Government Gazette No. 3132, 4 June 1971, p. 6. 2/ 1949 (4) S.A. 331(S.W.A.).3/ No. 29 of 1942..4] Khan, "Constitutional and Administrative Law," Annual Survey of SouthAfrican Law 1968 (Johannesburg, 1969), p. 47.

Rehoboth Gebiet Affairs, T.S.- 255It would appear that the Court might equally well have concluded that Parliamentwould have intended to include the Gebiet had it thought about it, but that it didnot consider the problem: obviously the Parliament could, according to theAppellate Division, have abrogat6d or modified the Agreement at any time, sinceit was not bound by it.If Bock had ever been valid and in effect in the Territory -- as the South AfricanGovernment of course assumes -- then it would necessarily prevent the fullimplementation of the 1923 Agreement, as the proviso to section 4 would nolonger be valid. According to the South African point of view, therefore, itappears that Bock would frustrate the purpose of Ordinance No. 20 of 1961 bymaking full restoration of the Agreement impossible.

- 256 -RIOTOUS ASSEMBLIES AND CRIMINAL LAW AMENDMENTORDINANCENo. 9 of 1930generalThis Ordinance is virtually identical in substance with the Riotous .ssemblies Actof 1956, 1/ which does not apply to the Territory. However, the sections arenumbered somewhat differently.The Ordinance is divided into two major subdivisions: the first deals withpreventing and dispersing riotous or potentially riotous assemblies; the seconddeals largely with union organizing and strike activities, although in terms itcovers employer counter-activities and some actions not connected with labourproblems.Prevention of potentially riotous assembliesSection 1 provides that if a magistrate has reason to fear that a public gatheringwill endanger the public peace, he may, under special authority of theAdministrator, prohibit the gathering-by written notice or, if necessary, by oralpublic announcement.A person who knowlingly publishes notices concerning, convenes, presides at, oraddresses a prohibited gathering is liable to a fine not exceeding R1O0 ($115) orto imprisonment for not more than six months. 2/If a magistrate empowered to prohibit a meeting under section 1 believes that aprohibited assembly will take place in a particular public place, he may close it

and adjoining areas, giving public notice thereof. Entering or remaining in such anarea while it is closed is an offence. 3/Dispersal of riotous assembliesSection 4 follows the old English law from which the expression "reading the RiotAct" is derived. It applies to any public gathering which assembles despite aprohibition or which kills or seriously injures (or threatens or shows a manifestintention to kill or injure) someone, or which destroys or seriously damages (orattempts or shows a manifest intention to destroy or damage) valuable property.In such circumstances a police officer shall loudly call upon those assembled todisperse or be dispersed by force. After this order has been repeated three Simes,the police may use such force as is necessary to disperse those who fail to obeythe order. Failure to obey the order is an offence. _/No. iT of 1956.Sections 1 (2), 2.3 Section 3.Section 4 (1) (b), (2).

Riotous Assemblies- 257Firearms or other lethal weapons may be used by the police only if weapons lesslikely to cause serious injury have been used in vain or if the assembled personsthreaten or show a manifest intention to kill or seriously injure others or to destroyor seriously damage valuable property. 5/Incitement to public violenceThis common law crime is defined in section 7 as acting or speaking, in any placewhatsoever, so that it may reasonably be expected that the "natural and probableconsequences" of the conduct or speech in question would, under thecircumstances, be the commission of violence by the public or by the persons whowitness the act or hear the speech.Intimidation in relation to employmentSection 8 makes illegal any form of intimidation or annoyance to compel anyperson to do or refrain from doing any acts in respect of employment as to whichthe law grants him a free choice.Intimidation in relation to associationSection 9 prohibits any form of intimidation to compel a person to join or refrainfrom joining an association or society.Prohibition of trespass to influence workmenSection 10 makes it an offence for any person to be in any work premises wherehe is not entitled to be for the purpose of inducing employees to unlawfully ceasework, leave work unfinished, or refuse to return to work.Prohibition of epithets and blacklistingSection 11 makes it an offence to direct verbal or written abuse against any personor his family or to blacklist him because he either works or refuses to work for aparticular employer.Breach of contract by public utility employees

Section 12 (1) applies to employees of organizations supplying communities withlight, power, water, or sanitary or transport services. It makes it illegal for anysuch employee wilfully to breach his employment contract, alone or with others,if he has reasonable cause to believe that the probable consequence will be todeprive a large section of the community of its supply of any of the services listedabove.Other breach endangering lifeSection 12 (3) makes it unlawful for an employee or employer to wilfully breachany employment contract if he has reason to believe that the probableconsequence will be to endanger human life, cause serious injury to, or to thehealth of, any person or to expose valuable property to destruction or seriousinjury.V Section 5.

Riotous Assemblies- 258Attempts, conspiracies, incitements generallySection 15 amends the general criminal lay of the Territory.Subsection (1) provides that any attempt to commit an oftence against a statute orstatutory regulation is an offence; and if no specific punishment is providedtherefor, the attempt shall be punished as the crime itself.Subsection (2) provides that conspiracy or incitement to, or abetting or procuring,a crime, vhether statutory or common law, is an offence punishable as the crimeitself.

- 259 -Riotous Assemblies and Criminal Law Amendment OrdinanceTechnical supplementj enralBoth this Ordinance and the 1956 Riotous Assemblies Act are derived from theSouth African Riotous Assemblies and Criminal Law Amendment Act of 1914. 1/prevention of potentially riotous assembliesSection 16 defines a "public gathering" as 12 or more persons in or along a publicplace who have a common purpose, whether lawful or unlawful.Dispersal of riotous assembliesThe provisions of sections 4 and 5 are not substantially different from those of theancient English "Riot Act", from which they are derived.Sections 4 and 5 caution against the use of more force than is necessary butpermit the use of lethal weapons to protect not only human lives, but also"valuable property". Section 6 is a savings clause, permitting the authorities to actunder other laws which may apply to situations involving riotous assemblies.Incitement to public violenceThis provision also follows very closely traditional British law.Intimidation in relation to employmentThis section corresponds very closely in substance, although nor in order of thesubsections, to section 10 of the 1956 Riotous Assemblies Act as it was originally

enacted. Section 10 was, however, greatly broadened in 1961 by dropping thephrase "in respect of employment", so that the offence thereafter referred tointimidation to compel a person to do or refrain from doing any acts generally.The Ordinance does not appear to have been similarly amended to broaden itsscope.Intim,'dation in relation to associationThis section should be compared with the preceding one, since it does not limitthe offence to intimidation to force people to join or refuse to join unions(probably its intention) and possibly also employers' organizations. The ,956 Actalso does not limit the equivalent offence (in section 11) to unions and/orUaployers' associations.Penalties for intimidation or breach of contractSection 13 provides that the penalty, except as otherwise provided, forintimidation or breach of public utility or other contract endangering life shall bea fine not exceeding R100 ($115) or, in default thereof, imprisonment for not1/ Act No. 27 of 1914.

Riotous Assemblies, T.S.- 260more than six months without option of a fine, or both fine and imprisonment.This should be compared with the penalties set a decade and a half later in theRiotous Assemblies Act for the same offences: R1,000 ($1,150) or up to 5 yearsin prison or 10 strokes or any two of these. 2/2/ Riotous Assemblies Act, No. 17 of 1956, Section 15.

- 261 -WAGE AND INDUSTRIAL CONCILIATION ORDINANCENo. 35 of 1952, as amendedGeneralThis is the basic general law governing labour relations in the Territory. a ispatterned in large part on the South African Wage I/ and Industrial Consaliation 2/Acts, which do not apply to the Territory. It varies in one major respect from thelatter, in that it omits the job reservation provisions of the Industrial ConciliationAct.The Ordinance came into effect on 1 August 1953. 3/Subjects coveredThe Ordinance is divided into three chapters, entitled: Wage Determinations(sections 3-19); Settlement of Industrial Disputes (sections 20-48); andAdministration and General (sections 49-80).However, chapter II is logically divisible into two subdivisions: registration oftrade unions (sections 20-32); and settlement of disputes by conciliation orarbitration (sections 33-48). Chapter III contains at least two sections withsubstantive provisions which would seem to fit more logically into the second orpossibly the first chapter: section 58, prohibiting most strikes and lock-outs; andsection 64, relating to changes in conditions of employment by an employer.Exclusions from coverage of the ordinance

Section 2 (2) provides that the Ordinance does not apply to farm workers or todomestic servants, almost all of whom are Africans.Wage determinationChapter I provides for determination of wages and other conditions ofemployment through the wage board.The board consists of three members appointed by the Administrator and,optionally, for a particular determination, two representatives each of theemployers and the employees concerned; such representatives are ordinarilymembers of the employers' organization and of the trade union to be affectedby the determination._/The board investigates conditions of employment in a particular trade or industryin a particular area and reports thereon to the Administrator. It may Makerecommendations as to such conditions. 5/1/ Act No. 5 of 1957.?f Act No. 36 of 1937 now replaced by Act No. 28 of 1956.3 Proclamation No. 26 of 1953.Section 3.5/ Sections 4, 6, 7, 9.

Wage and Industrial Conciliation- 262The Administrator, who normally follows the board's recommendations, makesthe final determination as to conditions of employment. Upon publication in theGazette, the determination becomes binding as of a date set by the Administrator.Its provisions remain binding until cancelled, suspended or superseded. 6/After notice and hearing of interested persons, the Administrator may eXtend thearea to which a determination applies beyond that covered by the wage board'sinvestigations. Y/Role of Africans in wage determinationUnlike Chapter II, Chapter I does not specifically exclude African workers fromits operation. However, it is politically inconceivable that an African would benamed to represent any workers, even other Africans, on a wage board.It appears that wage determinations made under Chapter I may cover Africans.Registration of trade unionsThe Ordinance requires registration and incorporation-of every tradeunion which seeks to represent workers under the Ordinance. Only one union maybe registered for any occupation, trade, and/or industry in a particular area, withpreference given to existing unions. 8/Conciliation of disputesThe Ordinance empowers the Administrator to establish a conciliation board tosettle a labour dispute. Such a board shall consist of equal numbers ofrepresentatives of employers and employees. The purpose of such a board is tohelp the parties reach an agreement.9./Effect of agreement reached by conciliation board

On the recommendation of a conciliation board, the Administrator may declare anagreement reached by it binding on the parties involved, both as individuals andas trade unions or employers' organizations. ifAt the request qf a conciliation board the Administrator may, if he believes thatthe parties to the agreement were sufficiently representative, extend the agreementor any portion of it to other employers and employees engaged in the same tradeor industry in the area. iiThe Administrator may also, at the request of a sufficiently representative groupof employers or-employees, extend the duration of the agreement. 1_/_/ Sections 16, 17, 18.7/ Section 19,_/ Sections 20, 21, 23, 25.2/ Sections 33, 34, 35, 40.10/ Section 46 (1).11/ Section 46 (2).12/ Section 16 (5).

Wage and Industrial Conciliation- 263ArbitrationA conciliation board may decide to refer a dispute to oneor more arbitrators; inthe case of a labour dispute involving the supply of light, power, water, sknitation,passenger transportation, or fire-fighting services:which has not been settledwithin a fixed period, it shall refer the dispute to arbitration. 13/An arbitration award shall be binding for a specified period of one to two years.1h/An arbitration award may be extended to other employers and employees engagedin the same trade or industry in the area. I5/Alternation in conditions of employmentSection 64 provides that if an employer changes, or gives notice ofintention to change, the conditions of employment of all or any employees, theemployees concerned may request the appointment of a conciliation.board. Theemployer must then refrain from changing conditions, or restore the formerconditions, until the board is appointed and makes its report or the Administratordecides not to appoint a board.The effect of an agreement or an arbitration award in such a situation is the sameas under Chapter II (discussed above). WProhibition of strikes and lock-outsSection 58 prohibits strikes and lock-outs while an agreement on employmentconditions or an arbitration award in respect thereto is in effect, or an applicationhas been made for the appointment of a conciliation board. Strikes and lock-outsare absolutely forbidden in industries supplying light, power, water, sanitation,passenger transport or fire-fighting services. Violation of the prohibitionconstitutes an offence.Role of Africans in the settlement of disputesSection 48 provides that in Chapter II the term "employee" does not include

a "native". Sections 64 and 58 (discussed immediately above) also exclude"natives" from the definition of employees.The effect of these exclusions is to deny Africans the (rather limited)protection and rights given to other workers by the Ordinance and to leave themsubject to generally older and more repressive "native administration" legis;-ationeven when they work in the same trade, or even in the same shops or plants, 14thwhites and other protected non-whites.13/ Sections 43, 44.1__ Section 47 (1).11 Sections 47 (3), 46 (2).Section 6h (2).

Wage and Industrial Conciliation- 264Africans, therefore, are not entitled to strike even in the few circumstances inwhich, under section 58, a strike by other employees is permitted. Nor do adversechanges in their conditions of employment entitle them to request theestablishment of a conciliation board under section 64.Similarly, Africans may not be chosen to represent themselves on conciliat-ionboards established under Chapter II, and the agreements reached by such baardsapparently do not ordinarily cover Africans. Since, however, in some cases theobject of such an agreement would probably be "defeated" by the employment ofAfricans at lower rates of pay, the Administrator may, on recommendation of theconciliation board, declare that in the affected trade and area all or certainprovisions of the agreement shall apply to Africans. 17/Although there is no specific provision to this effect, it appears that the protectionafforded by Chapter III to"employees" is extended to Africans only if they aredeemed "employees" in accordance with the provisions of the proceedingparagraph for the extension of agreements to them. 18/EnforcementChapter III provides for implementation and enforcement of agreements, awards,etc. It deals, inter alia, with exemptions for special classes of persons, penaltiesfor and recovery of underpayments, protection of employees againstvictimization, etc.In particular, sections 56 and 57 provide for the appointment of labour inspectorsand empower them to look into the enforcement of the Ordinance and agreements,awards and orders made under it.17/ Section 46 (3). 1/ See section 46 (6).

- 265 -W age and Industrial Conciliation OrdinanceTechnical supplementGeneralIn South Africa the basic law governing African labour is the Bantu Labour(Settlement of Disputes) Act, 1/ which is not in effect in the Territory.Section 22 (1) (ee) 2/ of the South-West Africa Constitution Act of 1968

provides that matters relating to employers and employees are now underPretoria's jurisdiction, both legislatively and administratively. However, thisOrdinance' remains in effect until superseded by Republican legislation.ExclusionsThe exclusions in this Ordinance should be compared with those in theWorkmen's Compensation Act, 3/ which applies to the Territory.In addition to the exclusions listed in the digest, the same section excludespersons employed by the South African Government or the territorialAdministration; volunteer workers for charitable organizations; and certainemployees at educational institutions. Unions of government employees may beregistered by the Secretary for South-West Africa; thereafter the relevantprovisions relating to settlement of disputes apply to the union members. 4/Wage determinationChapter I contains various provisions to make sure that interested persons areentitled to present their views to the wage board.Section 18 (1) provides that the provisions of a wage board determination shallnot be cancelled or suspended in favour of an agreement reached throughconciliation under Chapter II unless the agreement is on the whole not lessfavourable to the workers to whom it is to apply than the determination.Role of Africans in wage determinationSection 9, which covers "matters on which the Lvage7 board may makerecommendations", lists under subsection (1) (a) minimum wages "which anyemployer shall pay or grant to ... each member of any class of his employees ...,.The term "class" is frequently used to indicate race or colour; and its use in that.mnd other clauses of subsection 9 (1) suggests that wage determinations aremade for African as well as other workers. In some cases the vast majority ofnonsupervisory workers may be African.I/ Act No. 48 of 1953.2/ Added by Act No. 25 of 1969, section 14 (d). 3/ Act No. 30 of 1941._/ Section 2 (3).

Wage and Industrial Conciliation, T.S.- 266Registration of trade unionsChapter II requires the registration and incorporation of employers'organizations, as well as of trade unions, and the provisions appIying to the lafteralso apply to the former.Sections 20 through 32 constitute, in effect, the basic legislationgoverning unions and employers' organizations. These sections specify, inter alia,the basic contents of union and employer organization constitutions and indicatehow such constitutions may be amended; establish reporting requirements and theright of the Secretary for South West Africa to investigate the conduct of union ororganization officials; and provide for the winding up, and the cancellation of theregistration, of such bodies.The provision that only one trade union or employers' organization shall representthe employees or employers in one trade in a given area gives the registered union

or organization monopoly rights in the area. Such rights, in fact, extend beyondthat area whenever a wage determination, conciliation agreement, or arbitrationaward to which the registered union and employers' organization are parties, isextended to another area.Conciliation of disputesLabour disputes arise between employees and/or unions on the one hand and anemployer or employers' organization on the other. However, the law excludesdisputes between a single employee and an employer unless the industry involvedis one in which all strikes are forbidden or unless the Administrator believes aquestion of principle is involved.5/ Disputes as to legal interpretaticns oflegislation, agreements, orders or awards are also excluded.The procedure to be followed is carefully spelled out, particularly in sections 33,36, 37, 39 and 41.Section 42 provides for mediation at the suggestion of a conciliation board.Effect of an agreement reached by the conciliation boardAs to the question whether the parties to an agreement are sufficientlyrepresentative, see section 46 (7)Alteration in conditions of employmentSection 64 covers any change in conditions of employment except an individualpromotion, demotion, firing, etc. / As indicated under a subsequent rubric in thedigest, section 64 does not protect Africans.Prohibition of strikes and lock-outsBy necessary implication, section 58 permits strikes and/or lock-outsin those instances in which it does not prohibit them. As indicated under the nextrubric, however, this provision does not apply to African workers, who thereforeremain subject to other legislation applicable to them only.1/ Section 33 (1), and proviso thereto. / Subsection (6).

Wage and Industrial Conciliation, T.S.- 26TIf the application for appointment of a conciliation2 board is refused by theAdministrator, a strike or lock-out is permitted. Eoeof Africans in settlement ofdisputesA "native" is defined in section h8 as a "member of any aboriginal raceo.tribe of Africa". Sections 58 and 64 refer back to thee definition in section"Native" was similarly defined in much earlier Southa African legislation, but thedefinition led to certain legal problems and is no~w generally super-? seded byreference to race classifications made under the Population Registration Act. Inview of the substantial reclassification of the Nlama as Coloured, 7/ it is possiblethat Nana workers may be treated as Coloureeds under the Act at least where thatis convenient.Although Africans are excluded from the definition o~f "employee" inChapter II, the provisions in that Chapter relating to thee registration of tradeunions do not refer to "employees", but instead refer to "I'members".Consequently, there is not, on the face of the Ordinance, any legislativre bar toAfrican participation in unions. However, existing attitudes and praactices and

other legislation relating to Africans prevent what the Ordinancze apparentlypermits.I/ See Appendix III to digest, Note on Practices, "Assimniilation of the Namas".

- 268 -PART IIIProclamationsADMINISTRATION OF THE REHOBOTH COMMUNITY PROCLAMATIONNo. 28 of 1923 (South West Africa), ratifying the Agreement dated 17 August1923This Proclamation "ratified" an "agreement" dated 17 August 1923 between thqAdministrator of the Territory and representatives (via, the Kapitein and membersof the Volksraad) of the Rehoboth Community concerning the futureadministration of the Gebiet under South African rule and provided that it shouldbecome effective as of 1 October 1923.The bulk of the Proclamation consists of the appended agreement, discussedimmediately below. Paragraphs 2-4 of the Proclamation provide penalties forcontravening certain provisions of the agreement. Paragraph 5 provides that theAdministrator may make rules and regulations to effectuate the objects of theagreement.AGREEMENT DATED 17 AUGUST 1923 BETWEEN THEADMINISTRATOROF SOUTH WEST AFRICA AND THE KAPITEIN AND RAAD OF THEREHOBOTH COMMUNITY, RATIFIED BY PROCLAMATION NO. 28 OF1923GeneralThis Asreement defined and confirmed the boundaries of the Gebiet; provided forlocal self-government by the community; provided that certain existing and futurelaws governing the Territory were to apply to the Gebiet; defined the jurisdictionof the (white) district magistrate and of the raad (local legislature) in variouslegislative and judicial matters; and provided a method of settling disputesbetween the raad "nd the Administrator.HistoryAlthough this Agreement was apparently intended to govern the relationshipbetween the Gebiet and the Administrator for the indefinite future, it has beenunilaterally modified by South African authorities again and again, beginningwith the Rehoboth Affairs Proclamation of 1924. 1/ This was followed mostnotably by the Rehoboth Gebiet Affairs Proclamation of 1928 2/ and by S. v.Bock. 3/Proclamations 31 of 1924 and 9 of 1928 have, in turn, been - at least in principle -repealed by the Rehoboth Gebiet Affairs Ordinance of 1961, 14/ which stated thatit restored the Agreement into full force and effect. However, for reasons whichmust be surmised in part, 5/ the 1961 ordinance never becameN o. 31 of 1924.No. 9 of 1928.3/ 1968 (2) S.A. 658 (A.D.), discussed in detail in the technical supplement

to the digest of the Rehoboth Gebiet Affairs Ordinance, No. 20 of 1961. ._/Ordinance No. 20 of 1961.,/ See discussion in technical supplement to digest of the Ordinance.

Administration of the Rehoboth Community- 269effective, and its repeal of the 1924 and 1928 Proclamations appears to be stillinoperative. Seven years after the adoption of the 1961 Ordinance, but while itwas still inoperative, the Appellate Division handed down its decision in S. v.Bock, which purported to hold invalid section 4, a majorprovision of the Agreement.gplanation of the digestThis digest of the Agreement summarizes very briefly provisions of theAgreement which have been abrogated or superseded, and refers to the legislationor judicial decisions which have superseded (or purported to supersede) suchprovisions, indicating the substantive changes resulting therefrom.Should the 1961 Ordinance become effective, South African law wouldpresumably hold virtually all the provisions of the Agreement to be operativeagain. Under international law it appears that the 1961 Ordinance could not, afterrevocation of the mandate, restore laws validly amended or repealed during themandate period.Community boundaries defined.Section I of the Agreement recognized the Community boundaries as set out in anannex appended to it and provided for the voluntary inclusion of certain otherfarms listed in the section.Local self-governmentI Section 3 of the Agreement granted the Community the right of localselfgovernment within the Gebiet. The Administrator, however, reserved the rightto assent to all local legislation.Section 1 of Proclamation No. 31 of 1924 superseded section 3 of theAgreement by transferring all powers, functions and duties of the Kapitein, theVolksraad, and the Kapiteinsraad to the (white) magistrate of the RehobothDistrict. Section 2 of Proclamation No. 9 of 1928 created a partly - later fully -elected Advisory Board of Basters to advise the magistrate concerning theinterests of the people of the Gebiet. Ordinance No. 20 of 1961 would repeal theseprovisions and restore section 3 of the Agreement.Extension of territorial laws to the GebietSection 4 of the Agreement provided that the Administrator should have thePower, after consultation with the raad, to legislate for the Gebiet. It 4sOempowered him to "extend" (i.e., make applicable) to the Gebiet any law wichapplied to the rest of the Territory if he considered it expedient or d4sirable in theinterests of either the Territory or the Gebiet. This proVision was interpreted bythe High Court of South West Africa in 1949 to mean that a law in effect in theTerritory which had not been "extended" to the Gebiet was not effective there. 6/§/ Universal Distributors (Pty.) Ltd. v. Dickson, 1949 (4) S.A. 331 (S.W.A.).

Administration of the Rehoboth Community- 270In 1968, after the revocation of the mandate, the South African Appellate Divisionfor the first time considered the proper interpretation of section 4. Purportedlyoverruling the earlier interpretation, it held that -aws applicable to the Territoryalso applied automatically to the Gebiet even tlough they had n~t been "extended"to it in accordance with section 4 of the Agreement. 7/Section 5 provided that territorial laws applied to the Gebiet are to beadministered by officials of the Territorial Administration.District MagistrateSection 6 of the Agreement provided that the Administrator should appoint a(white) magistrate for the District of Rehoboth (which includes, but extendsbeyond, the Gebiet) and that the magistrate should represent the Administratorvis-a-vis the Kapitein and the raad.Proclamation No. 31 of 1924 vested the powers, duties, and functions of theKapitein, Volksraad, and Kapiteinsraad in the magistrate. If effective, OrdinanceNo. 20 of 1961 would divest the district magistrate of these powers, duties andfunctions and restore them to the officials listed in the Agreement.Judicial proceedingsThe Agreement gave original civil and criminal jurisdiction over cases involvingnon-whites to the judges and magistrates of the Gebiet. 8/The district magistrate was granted jurisdiction over civil cases involving a whiteif the defendant was a resident of the Gebiet or owned property there; and heshared jurisdiction with the High Court of South West Africa (later the SouthWest Africa Division of the Supreme Court) as to offences involving a whiteperson and certain other excepted offences listed in a schedule appended to theAgreement. 9/Entry into GebietSection 14 of the Agreement forbids all non-residents other than bona fidetravellers from entering the Gebiet without the permission of the districtmagistrate.Right to reside or acquire real property in Gebiet. Section 15 of the Agreement forbids any person other than a lawful resideatoithe Gebiet as of the date of the Agreement to reside or acquire a freehold orlasehold interest in immovable property there without special permission.Ac'ording to South African law, this section must be deemed implicitly amendedby the Rehoboth Investment and Development Corporation Act. 10/S. v. Bock, sunra, note 3.Sections T, 10.2/ Sections 10, 11.10/ Act No. 84 of 1969.

Administration of the Rehoboth Community- 271Special revenue provisions

The first paragraph of section 17 of the Agreement provided that when a revenuelaw was extended to the Gebiet, the raad might neogiiate with the Administratoras to the sum to be paid to the Administration udder the terms of he law.Subsequent legislation 11/ required the Community-Tto make extra payments toreimburse the Administration for the costs of administering the Cebiet resultingfrom the involuntary transfer of functions to the district magistrate.The second paragraph provided that money to be paid by law to the "localauthority" should be paid to the raad. Presumably such money was payable to thedistrict Magistrate after Proclamation No. 31 of 1924 became effective.Settlements of disputes between the raad and the AdministratorSection 18 of the Agreement provided that in case of a dispute between theAdministrator and the raad on an issue arising out of the Agreement, the raadshould present a written statement thereon to the Administrator or make personalrepresentations to him. If no satisfactory accord was reached, the raad was entitledto petition Parliament either directly or through the Prime Minister.It would appear that this procedure was not followed in the controversy which ledto the issuance of Proclamation No. 31 of 192. That Proclamation abrogatedsection 18 by implication.Termination of agreements with the German GovernmentSection 19 of the Agreement cancelled all existing agreements with the GermanGovernment, except one relating to "mining", which was to continue in effect.1-J Proclamation No. 31 of 192, section 6 (substituted by Orwinance No. 27 of1956, section I).

- 272 -Administration of the Rehoboth Community ProclamationTechnical supplementGeneralIn general, Proclamation 31 of 1924, Proclamation 9 of 1928, and subsequentlegislation "modifying" the 1923 Agreement did not,.in fact amend it orspecifically repeal its provisions. The later legislation simply enacted provisionswhich were necessarily inconsistent with the provisions of the Agreement. Beinglater, these provisions necessarily had to be construed as superseding -- or ineffect abrogating -- the earlier provisions.For example, section 1 of the 1924 Proclamation provides that the Kapitein,volksraad and kapiteinsraad shall cease to "function" and that their powers, duties,and functions shall be transferred to the district magistrate. In the strictest sensethe 1924 Proclamation thus did not terminate the officeslisted, but it left them meaningless titles.Community boundaries definedThe boundaries established by the Agreement were subsequently modified severaltimes, in some cases by the addition of adjacent farms which had been once butwere no longer owned by members of the Community. In this connection itshould be noted that the original Gebiet covered a larger area; but during theGerman administration a number of farms had been lost, through defaulted

mortgages or otherwise, or had been alienated for some other reason to landspeculators or white farmers. For some of the consequences of the transfer ofGebiet land to white ownership, see the technical supplement to the digest of theRehoboth Investment and Development Corporation Act under "Limitation ofpowers to dispose of land".The Odendaal Report recommended some further changes in the Rehobothboundary, to "round it out" and eliminate some remaining anomalous whiteholdings. However, it should be noted that the Native Nations Act, L/ whichmade certain "homeland" provisions of the Odendaal Report effective, providedthat there could be further changes in the boundaries which it established.Local self-governmentThe right to local self-government accorded by the Agreement was to be asestablished in the Law Book of the Raad of the Rehoboth Community (as lawfullyamended). This "Law Book" was the constitution and summary of RomanDutchlaw which the Basters had brought with them on their trek from the Cape Colonyto Rehoboth in the mid-nineteenth century.The right to assent to all local legislation implied lie right to withhold consent, asa provincial Administrator can withhold consent to provincial legislation. Thethird paragraph of section 3 provided that the Aministrater1/ Act No. 54 of 1968.

Administration of the Rehoboth Community, T.S.- 273could return legislation to the raad "with such amendments as he shall consider,needful or expedient. The Raad ... shall thereupon take such amendments intoconsideration."Section 8 of Proclamation No. 31 of 1924 made it an offence to usurp or exercisethe (original or transferred) powers, duties, or functions of the district magistrate.Extension of territorial laws to the Gebiet: S. v. BockTerritorial laws applied to the Gebiet as of the date of the Agreement were listedin an annex attached to the Agreement. Almost every year thereafter theAdministrator issued one or more proclamations extending additional laws to theGebiet.It is clear that the proviso to section 4 of the Agreement was neverinterpreted to mean that Parliament or the territorial Legislative Assembly couldnot legislate directly for the Gebiet if the law in question stated specifically that itapplied to the Gebiet. In such cases a proclamation extending the legislation to theGebiet was admittedly unnecessary. The question which faced the AppellateDivision in S. v. Bock was whether a law which was made applicable to theTerritory but which did not state that it applied tothe Gebiet and which had not been "extended" to the Gebiet should neverthelessbe held to apply to the Gebiet because it was the kind of law which obviously was(or should be) universal in its application.In order to reach its conclusion in that case the Court had to determine the effectto be attributed to a clause, such as was found in much legislation applying to theTerritory, which provided that the law in question also applied to the Gebiet. It

was argued that the only possible reason for adding such a provision to a law wasthat in its absence the law would not apply to the Gebiet (unless, of course, it wasextended thereto by the Administrator). The Appellate Division held, however,that such a provision had been inserted in some laws out of an excess of caution,and that in fact it had no effect: every law which was applicable to the Territoryalso applied automatically to the Gebiet whether or not it so provided in its text.Judicial proceedingsUnder section 8 (1) of the Agreement courts were to apply the law of the Gebiet,if any existed, in civil cases involving members of the community. 2/ In criminalcases involving a white person the general penal law of the Territory appliedunless it had not been extended to the Gebiet (as was presumably the case as tomany petty and miscellaneous offences).3/The Gebiet rules of civil procedure were superseded in i8: the Administrator wasto prescribe rules for proceedings involving nonwhites, and the presiding Judicialofficer was to do so when a white was a party. 4/ The 19242/ See also Proclamation No. 31 of 1924, section 2 (3). 3/ Agreement, section10.4/ Proclamation No. 9 of 1928, section 4 (2), (3).

Administration of the Rehoboth Community, T.S.- 274Proclamation directed that the procedure governing magistrates' courts generallyshould apply thereafter in criminal cases. I/These changes in civil and criminal procedure would be repbaled by OrdinanceNo. 20 of 1961 if it became effective.gntry into the GebietUnder the Agreement, permission to enter was to be granted or denied afterconsultation with the raad. But the requirement of consultation was abolished byProclamation No. 9 of 1928, section 5, which also made exceptions forgovernment functionaries on official business and persons (i.e., whites) searchingfor lost or stolen stock.Right to reside or acquire real property in the GebietUnder the Agreement, permission had to be obtained from the raad, with theconcurrence of the district magistrate in the case of nonwhites, and from theAdministrator if a white was involved. Permission from the Administrator isrequired in all cases now. YAs to the fear that non-members of the Community would acquire land throughmortgage defaults and otherwise, see above, "Community boundaries defined"and references cited there, as well as the Rehoboth Investment and DevelopmentCorporation Act.Section 7 of Proclamation 9 of 1928 provides for the removal from the Gebiet ofany person "other than a member of the Rehoboth Community". The provisionsresemble in certain respects those of the "Undesirables Removal Proclamation".V/This section was subsequently amended in effect to protect all interests in land inthe Gebiet which were held by whites as of the date of the amendment. / The

protection of white interests continued to be a paramount concern until thedevelopment of "homelands" required a minimal consideration for the interests ofthe "members" of the "Rehoboth homeland".V/ Proclamation No. 31 of 1924, section 2 (3).Proclamation No. 9 of 1928, section 6(2); but see Rehoboth Investment andDevelopment Corporation Act, No. 84 of 1969, section 6 (2) (a). 7/ No. 50 of1920, q.v.'6/ Proclamation No. 29 of 1929, section 2.

- 275CONTROL AND TREATMENT OF NATIVES ON MINESPROCLAMAATIONNo. 3 of 1917 (South West Africa), as amenaedGeneralThis Proclamation was issued during the South African occupation ofthe then German Protectorate of South West Africa to prevent strikes andslowdowns during the First World War.The main purpose of the Proclamation -- found in the first word of the title -- hasbeer substantially modified by proclamation of the State President in 1975. 1/The 1975 Proclamation repealed or amended sections 2, 3, 4, 5, 14 (2), 15, 17 (1)(e), and 18 (1) and (2). It thereby abolished provisions making disobedience,insubordination, absence from work and other similar acts criminal offences.A few other provisions appear to be in effect, but the great bulk of them haveprobably been suspended as long as the general Employment BureauxRegulations / apply in the "white area."Compound managersThe Proclamation requires every employer of more than 50 Africans to employ acompound manager, who must be licensed by the Administrator and operateunder the conditions set out in his license. 3/i_/ Proclamation No. 105 of 1975, Government Gazette No. 4704, 9 May 1975.South West Africa Official Gazette No. 3467, 2 June 1975._/ Proclamation No. R. 323 of 1972 (Republic) (q.v.), Go'Vernment GazetteNo. 3742, 22 December 1972.3/ Sections 6-13.

- 276 -DEPORTATION OF UNDESIRABLE PERSONS FROM SOUTH WESTAFRICA PROCLAMATIONNo. 148 of 1962 (Republic), as amendedGeneralThis Proclamation empowers the Administrator to remove "undesirable" SouthAfricans from the Territory.It does not appear to grant him any power not already vested in him by thesubsisting Undesirables Removal Proclamation of 1920.Proclamation applies to South African citizens only

The Proclamation empowers the Administrator to act under its provisions as topersons "born in the Republic of South Africa" only. It does not extend hispowers to naturalized South Africans or to aliens. g/Administrator may deem South Africans undesirableSection 1 empowers the Administrator to "deem" a native-born South Africanundesirable if he has at any time been convicted of any of a list of felonies andother serious offences, including various sexual offences; or if he has been at anytime sentenced to prison for any offence relating to (i) brothels, immorality, ormiscegenation or (ii) supplying liquor to "natives" or (iii) possession of or dealingin habit-forming drugs; or if he has been convicted at any time in the Territory ofany offence under circumstances which make him undesirable.Removal of persons deemed undesirableWhen the Administrator has deemed a person undesirable, he may issue an orderto him to leave the Territory within a specified period, failing which he will bearrested and removed. 3/AppealsA person served wi~h an order to leave the Territory issued under thisproclamation may appeal to an appeals board established under the Admission ofPersons to the Republic Regulation Act. 4/ The decision of such a board shall be"final and conclusive". 5_/If the appeal is dismissed and the appellant has not yet left the Territory, theSecretary for the Territory shall see that he is removed forthwith. Pendingremoval he may be kept in custody. 6/i/ Proclamation No. 50 of 1920. 2/ Section 1.3/ Sections 2, 7.4_/ Act No. 59 of 1972, q.v./ Sections 4 (1), (6), 9.6/ Section 7.

Deportation of Undesirable Persons- 277Subseouent Dresence in Territor constitutes an offenceIt is an offence for any person to be present in the Territory after he has beenlawfully removed. It is a new offence to remain in or to *gain be present in theTerritory after conviction for unlawful presence there. ITechnical supplementGeneralThis Proclamation repeals an earlier Proclamation of the same name, No. 267 of1954, as amended by Proclamation No. 224 of 1960, which is also repealed.There does not appear to be any major difference in substance between the 1954Proclamation and this Proclamation; but this Proclamation spells out appellateprocedure in considerably more detail.The Proclamation was printed in the South West Africa Official Gazette No. 2411of 29 June 1962.Application to South African citizensSince the Proclamation applies to persons born in South Africa, it would

apply to aliens, who had been born in the Republic and had not thereby gainedSouth African citizenship or had subsequently lost South African citizenship.LppealsIt is not at all clear, from a reading of section 4, on what basis a person servedwith a removal order may appeal.The procedure in relation to appeals is set out in sections 4-6.7/ Section 8.

- 278 -EASTERN CAPRIVI LEGISLATIVE COUNCIL PROCLAMATIONNo. R. 6 of 1972 (Republic), as amended(Never legally in effect in Namibia)GeneralThis Proclamation l/ creates a legislative council, and from that bodyan executive council, for the Eastern Caprivi Zipfel. It follows the provisions forincreasing "self-government" for the "native nations" of Namibia as set out in theDevelopment of Self-Government for Native Nations in South-West Africa Act.2/ It is apparently to be further modified to provide greater "self-government" in1975 or 1976.Legislative Council establishedSection 1 establishes an Eastern Caprivi Legislative Council at Ngweze in theEastern Caprivi Zipfel.Section 2 provides that the Council is to consist of not more than 28 members,selected as follows:the chief and not more than 13 persons designated by the Mafwe TribalAuthority andthe chief and not more than 13 persons designated by the Basubia TribalAuthority.Legislative Council membershipSections 4 and 5 establish the qualifications of members and determine when theseat of a member is deemed vacated.Section 3 in effect permits the sending of proxy members for members of theLegislative Council, but not for members of the Executive Council.The Proclamation does not establish a term of office for members of theLegislative Council (although members of the Executive Council serve five yearterms). 3/ A member of the Legislative Council apparently remains in.that bfficeuntil either he dies or resigns, or his designation is revoked by the TribalAuthority, u/ or he becomes otherwise disqualified.Annual session requiredSection 6 requires the Legislative Council to hold at least one session each year.1/ Issued in South African Government Gazette No. 3373, 2 February 1972. 2/Act No. 54 of 1968.3 Section 11.See section 5 (d).

Eastern Caprivi Legislative Council

- 279Legislative Council procedureThe procedure for the Council is set out in Proclamatien No. R. 7 of 1972. 5/Section 7 provides that the State President, the Minister of Bantu Administrationand Development, the Commissioner-General, or any person especiallyauthorized by the State President may attend and address any session of theLegislative Council.Executive Council establishedSections 8 and 9 provide for an Executive Council consisting of the chief of eachtribe ex officio, and one member of each tribe nominated by the Tribal Authorityby which he was appointed as a member of the Legislative Council. The ChiefCounsellor id elected by the Legislative Council. 6/Members of the Executive Council ("Councillors") are elected for fiveyear terms,but the Tribal Authority which nominated the Councillor or the LegislativeCouncil may petition the State President through the Minister of BantuAdministration and Development to remove a Councillor before the end of histerm. 7/Powers, functions and duties of the Executive CouncilThe Executive Council shall allocate administration of the different departmentsof government to different Councillors and assign them powers, functions andduties in connection with subjects under the control of the "homelandgovernment." It may reorganize the departments after consultation with the StaffBoard (white Administrators seconded to the East Caprivi 'lkovernment').Salaries and allowancesSalaries and allowances of members of the Legislative Counci4 originally set outin Proclamation No. R. 8 of 1972, have been increased by enactment of theCouncil.Published in Government Gazette No. 3373, 2 February 1972.Section 10.TV Sections 11, 12.

- 280 -Eastern Caprivi Legislative Council ProclamationTechnical supplementLegislative Council establishedThe July 1972 issue of South African Scope contains a discussion ofselfgovernment for Africans in the Republic and the Territory. In the sectiondealing with constitutional development, it refers to Legislative Councils like theEastern Caprivi Legislative Council as being based on the principle of "tribalfederalism". I/ In any case it is clear that the people are only very indirectlyrepresented.For the constitution, powers, etc., of tribal authorities in Nwanibia, see sections 7and 8 of the Native Nations Act. See also Proclamation No. R. 261 of 1971establishing the tribal authorities in the Eastern Caprivi Zipfel.Legislative Council membership

Section 5 (d) permits a tribal authority to revoke the designation of a member ofthe Legislative Council, except the designation of a chief, a Councillor, or theChairman or Deputy Chairman of the Legislative Council.Executive Council establishedWhile a tribal authority may petition for the removal of a Councillor generally,only the Legislative Council may petititon for the removal of the ChiefCouncillor. 2/Powers, functions and duties of the Executive CouncilA schedule appended to the Native Nations Act indicates the subjectsas to which a Legislative Council may make enactments. The Executive Councilmay implement such enactments.The implicit veto power of the seconded white officials, whose existence isplayed down in the Proclamation, suggests the important role they play beyind thescenes in "homeland governments". It has been alleged by local observers thatthey, in fact, run things while tribal officials settle forstatus and glory.Salaries and allowancesEastern Carivi Enactment No. 3 of 1975 3/ specifies the following salaries for themajor officials of the "homeland government".R7,200 per year for the Chief Councillor and for every Councillor who is a chief;1/ At page 8.2/ Section 12 (1) (b).3/ Published in South African Government Gazette No. 4714, 25 May 1975.

Eastern Caprivi Legislative CounciJ T.S.- 281R6,000 per year for the'other Councillors;R3,000 per year for the Chairman of the Legislative Counc$l; andR2,700 per year for the Deputy Chairman of the Legislative Council. Theseofficials do not receive travel allowances or per diem payments. ._/Other Legislative Council members receive an allowance of R8.00 for eachday the Council sits. 5/ They also receive a travel allowance of RO.06 perkilometre for one trip per session from their homie to Ngweze and return. 6/.i/ Section 2 (1).5/ Section 2 (1) (a) (i)._/ Section 2 (1) (a) (ii).

- 282 -EASTERN CAPRIVI ZIPFEL ADMINISTRATION PROCLA4ATIONNo. 147 of 1939 (Union), as amendedGeneralThis Proclamation defines the area referred to in all subsequent legislation as theEastern Caprivi Zipfel, and transfers its administration from the Administrator ofthe Territory to the Minister of Native Affairs (now Bantu Administration andDevelopment)."Eastern CaDrivi Zipfel" defined

The Eastern Caprivi Zipfel is defined in the second preambular paragraph as thatportion of the Caprivi Zipfel which lies to the east of a line running due southfrom Beacon Number 22 on the border between Angola and the Territory. Theline runs just slightly to the west of the Cuando River, which crosses the Zipfelfrom north-west to south-east near that line.Laws applying to the Eastern Caprivi ZipfelSection 3 provides that laws in effect in the Eastern Caprivi Zipfelbefore the effective date of the Proclamation remain in effect unless specificallyrepealed or amended. Subsequent legislation, now embodied in section 38 (5) l/ ofthe 1968 Constitution Act, 2/ provides that no Act of Parliament or Ordinance ofthe Legislative Assembly enacted since 1 November 1951 shall apply to theEastern Caprivi Zipfel unless expressly declared to apply thereto.Substituted by Act No. 25 of 1969, section 17. Act No. 39 of 1968.

- 283 -Eastern Caprivi Zipfel Administration ProclamationTechnical supplementBackgroundThis Proclamation brought to an end two decades of experiments as to the bestway to administer the Caprivi Zipfel. Control over the Zipfel hadbeen nominal under the Germans and more effective but difficult between thewars.At the close of the First World War the entire Caprivi Zipfel was administered fora short while as part of the Territory. On 13 January 1922, Union ProclamationNo. 12 of 1922 placed the entire Caprivi Zipfel under the administration of theHigh Commissioner for South Africa. Two months later, Proclamation No. 23 of1922, which was made retroactive to 1 January 1921,ordered the Caprivi Zipfel to be administered as if part of the then BechuanalandProtectorate and provided that the laws of the Protectorate, rather than the laws ofthe Mandate (except for certain scheduled ones) should be in effe-t in the CapriviStrip. Section 43 (b) (now replaced)of the 1925 South West Africa ConstitutionAct provided that the Caprivi ZZp fel should be deemed !'not to form part of theTerritory Lof South-West Africa for the purposes of this Act ."Proclamation 196 of 1929 repealed Proclamation 12 of 1922 (and, by necessaryimplication, Proclamation 23 of 1922 as well) and provided that the entire CapriviZipfel should be administered as part of the Mandate. Section 6 (7) of Act No. 38of 1931 repealed section 43 (b) of the 1925 Constitution Act, presumablyreinforcing Proclamation No. 196 of 1929 by parliamentary action.Proclamation 147 of 1939 recognizes the real problem: that the eastern end of theCaprivi Zipfel is relatively difficult to administer from the Territory due to itsgeographical location and to the topography of the adjoining western part of theCaprivi Strip. It therefore leaves the western end as part of the Territory butestablishes a special category for the eastern sector. The provision that neitherActs of Parliament nor territorial Ordinances shall apply to the Eastern CapriviZipfel, unless made expressly applicable thereto, is a recognition of the specialstatus of the area.

Supreme Court jurisdiction over the Eastern Caprivi ZipfelSection 4 of the Proclamation provided for the continued jurisdiction of the HighCourt of South West Africa (now the South West Africa Division of the SupremeCourt) over the Eastern Caprivi Zipfel. This was superseded by South-WestAfrica Affairs Amendment Act, No. 55 of 1951, section 4, which provided thatthe Transvaal Provincial Division of the Supreme Court should have jurisdictionover the Eastern Caprivi Zipfel.

Eastern Caprivi Zipfel Administration, T.S.- 284"Self-government" for the Eastern Caprivi ZipfelAn Eastern Caprivi Legislative Council was established in February 1972 for thearea under the provisions of the Development of Self-Government for NativeNations in South-West Africa Act, No. 51 of 1968. 1/i_/ See Proclamation No. R. 6 of 1972, published in Government GazetteNo. 3373, 2 February 1972.

- 285 -E PLOYMENT BUREAU REGULATIONS PROCLAMATION No. R. 323 of1972 (Republic)*(Never legally in effect in Nanibia)GeneralThese regulations repeal and replace earlier Employment Bureaux Regulationspremulgated by Proclamation No. R. 83 of 1972. l/ The new regulations arecontained ii the schedule appended to Proclamation R. 323, which merelypromulgates them and defines the area to which they apply.These regulations supersede, as did the preceding regulations, all existinginconsistent legislation governing the employment of Africans in the formerPolice Zone, or "white area." 2/The superseded legislation supported a private system of recruiting Africans fromthe north for labour in the south. The system was controlled by SWANLA (SouthWest African Native Labour Association), an organization representing the majoremployers in the area. The new regulations are based on a decentralizedgovernmental system of recruitment, nominally operated in part by the "homelandgovernment."Although touted as representing a major change in labour policy, these regulationsleave in effect the existing system of passes and permits; they continue to preventworkers from leaving their jobs freely; and they continue effectively to preventworkers from having their families with them at their place of work.Regulations apply to Africans onlyThe regulations apply to African workers only. Whites, Coloureds and Basters areexcluded indirectly. 3/ Namas are specifically excluded; I/ they have, since thepromulgation of these regulations, been made subject to virtually identicalregulations which apply to them only. 5/The regulations naturally apply to white employers.New labour reference system

Although these regulations do not so state, it appears that they complement theagreement reached at Grootfontein between the Government of South Africa onthe one hand and the Ovambo and Kavango "governments" on the other. (Thetext of that agreement is not available.) It is reported that under that agreementthe Ovambo and Kavango authorities have established their own labour bureauxto recruit Africans to work in the South.%h Published in Government Gazette No. 3742, 22 December 1972. I-Published,-in Government Gazette No. 3442, 30 March 1972.- Regulation 12; Proclamation No. R. 83 of 1972, regulation 12.3/ Regulation 1, definition of "'employee' and 'workseeker."' This definitionrefers to the definition in the third last paragraph of section 25 of theNative Administration Proclamation, No. 15 of 1928 (q.v.)f 1. Regulation 1,definition of "'employee' and 'workseeker'." ../ Employment BureauxRegulations for Namas, Proclamation No. 32 of 1973, Government Gazette No.3780, 9 February 1973.

Employment BureauxRegulations- 286In order to look for work in the "white area" it appeavs that an Ovambo orKavango must still have his identification pass, his permit to leave the"homeland," and a valid travel permit. He must be referred'by his "homeland"labour bureau and he must go to the employment bureau in the "white area" towhich he is referred.Administration of labour bureaux in the "white areas"The regulations apply to all areas outside the "homelands.' 6/Regulation 2 (1) establishes an employment bureau in each Native Com'issioner'sarea of jurisdiction. These bureaux are under the overall supervision of the ChiefNative Commissioner, who appoints an employment officer to head each bureau.Employment officers are peace officers, 7/ entitled tomake arrests under the Criminal Procedure Ordinance. 8/The most important power of an employment officer is to determine whether anAfrican may take a job or continue working at his job. 2/ Grounds for refusing tolet an African take a Job or continue workingAn employment officer can refuse to permit an African to take a job or can cancelhis service contract, so that he cannot continue working, if the officer is satisfiedthat:the employment contract is not bona fide; orthe African does not have permission from his "homeland government" toleave his home, or he has overstayed his leave; orthe African is still bound by an existing contract; orany law forbids the African to be in the area or to take the job; orthe African has refused to submit to medical examination or has a dangeredisease; orthe African is subject to a removal order; orthere is no accommodation for the African or he fails to occupy anavailable accommodation; or

the African is under 16 and lacks parental consent to work. 10/6_/ Proclamation, paragraph 2. 7/ Regulation 2 (2). 6/ Ordinance No. 34 of1963. 9/ Regulation 3 (2), (3), (4), (7). 10/ Regulation 3 (3) (i).us

Employment Bureaux Regulations- 287Definition of "workseeker"Every employable male African over 16 who does not have-:a job is, in effect,defined by the regulations as a "workseeker" unless he is a farmer or at school. L/It appears that African women in the same age group are also treated asworkseekers if they seek employment or are dependent on employment for theirlivelihood. 12/Procedure for workseekersThe prescribed procedure for workseekers in the "proclaimed area" is morerigorous in several respects than that in the remainder of the "white areas"although the provisions for the two areas do not differ basically.(The "proclaimed area" includes, in effect, all urban and major industrial ormining areas; technically it includes all areas proclaimed by the Administrator.)13/Regulation 6 (1) requires every workseeker in the proclaimed area toreport to the district employment bureau within 72 hours of becomingunemployed. In the non-proclaimed area an employable African has 17 days,instead of three, to report to the district employment bureau when he becomesunemployed. 14/An African who reports to an employment bureau is referred to an employeroffering "suitable" employment. If no suitable employment is available, or ifthe workseekerturns down successive job offers, he is subject to removal from thearea. In a non-proclaimed area, however, if the African cannot be placed, theemployment officer may give him a document permitting him to seek work on hisown within the district for a period of 14 days. 15/Africans are forbidden to go from one Native Commissioner's district toanother to seek work or to take available Jobs. 16/When an African has found a job and his contract is registered by the employmentofficer, a notification to that effect is sent to him and his employer. Thenotification sent to the employee serves as another pass. He must retain it as longas he continues to work for the same employer; and the employer is required toendorse the notification monthly to show that the employment is continuing.Every African employee must produce this endorsed notice on demand by anyemployment officer or other white official. 17/Procedure for employersRegulation 5 (i) requires everyone in the "white area" who customarily employsAfricans to register with the district employment bure-Au as an employer.11/ Regulation 1, definition of "'employee' and 'workseeker"; regulation 6 (1). 12/Regulation 6 (4). -1

13/ It is defined in the Natives (Urban Areas) Proclamation, No. 56 of 1951(SWA).1 / Regulation 6 (2).1i Regulations 3 (5), 6 (3) (iv).Regulation 6 (2), further proviso.17/ Regulation 9 (1), (3).

Employment Bureaux Regulations- 288Every person who wishes to emply an African must notify the districtemployment bureau. In the proclaimed area an employer is prohibited from hiringany African not referred to him by the district employment officer; whereas anemployer in the non-proclaimed area may obtain employees through the districtemployment bureau or, from outside the district. Any employer who hires anAfrican mUf.t notify the employment bureau. The bureau determines whetherthere is any re~on why the employment o* such person should not be approved;and if there is none, the contract of service ij registered. 18/Every employer is required to notify the district employment bureau when aregistered service contract is terminated for any reason. 19/Right of an employee to quit his jobIt is a breach of contract for an African to quit his job before his contract expiresor is cancelled by a Native Commissioner. If he is dissatisfied with his contract,his employer or his working conditions, his only remedy is to complain to theemployment officer. The latter in turn informs the Native Commissioner of thecomplaint. After consulting the employer, the Native Commissioner LmM declarethe contract cancelled if his investigation shows the complaint justified. In thatcase, the African is referred to the employment bureau to obtain a new job. 20/An African who breaks his contract may be refused permission to take another jobin either the proclaimed or the nonproclaimed area; if he has entered into anotherservice contract, it may be cancelled. In addition, he may be deemed to beunlawfully in the white area and be subject to removal. 21/ER'niyers' right to cancel a contract of serviceThe employer has the right, granted by regulation 4A, to lodge a complaintagainst his employee for "misconduct," unsatisfactory service, refusal or failure toobey orders, or other conduct "prejudicial to the interests of the employer." If theNative Commissioner finds the complaint warranted, he declares the contractterminated and may order the employee removed to his "homeland."Removal of AfricansA Native Commissioner may order an African and his family, if any, to returnhome or to go to pny other place if:there is no suitable employment to offer the African; orthe African has been refused permission to be employed in the area; orI/ Regulations 5 (3), (4); 7 (1); 8 (1); 9 (1)._/ Regulation 10 (1).Regulations 3 (6); 4 (1), (2), (3).21_/ Regulations 3 (3) (i) (c); 4 (5), (6).

Employment Bureaux Regulations- 289the African has refused three successive job offers; orthe African's service contract has been cancelled.If the African fails to obey such an order, he shall be deemed to be unlawfully inthe area and be subject to being removed at his own expense. 22/Taxes and feesEmployers of Africans are required to pay monthly fees for each Africanemployed. Africans working as casual labourers or independent contractors arerequired to pay the same monthly fees. 23/Offences and penaltiesRegulation 13 (1) sets a fine of up to R100 or, in default of payment,imprisonment for not more than six months for contravention of the regulations.In the case of a continuing offence a fine of not more than R20 may be imposedfor each day it continues or, in default of payment, a proportionate period ofimprisonment not to exceed six months.In addition to the penalty prescribed above, a person who employs anAfrican in contravention of the regulations may be ordered to pay the travellingexpenses involved in removing the employee. 24/22/ Regulations 3 (5); 4 (5), (6). 23/ Regulation 11 (1), (2), (3). 2/ Regulation13 (3).

- 290 -Em alo.rnent Bureaux Reulati onsTechnical supplementGeneralThese regulations do not differ in any substantial respect from the.regulations promulgated the preceding March, which they replace. However, the"Zearlier regulations were drafted very hastily after the Grootfontein agreementwas signed and SWANLA was abolished. The new regulations fill in certainlacunae and modify in rather minor respects various provisions of the Marchregulations.These regulations supersede the earlier legislation only as long as the regulationsremain in force. If the regulations are repealed, then the earlier legislation onceagain is in effect, according to regulation 12.New labour reference systemThe Owambo Legislative Council purportedly adopted a Labour Enactment forOwambo in 1972, 1/ which establishes employment bureaux very similar to thoseset up by the 1972 regulations. It appears that the employment bureaux in the"homeland" serve as the recruiting agents for labourers going to the "white area,"directing them to the areas where workers are needed. (In addition, these bureauxappear to function in their own area as the territorial bureaux do in the "whitearea.")Areas to which the regulations applyAccording to their wording these regulations apply to all parts of the

Territory except Damaraland, Hereroland, Kaokoland, Kavangoland, EasternCaprivi, Ovamboland and any other "homeland" recognized by the State Presidentunder section2 of the Native Nations Act. 2/ In practice, however, it is obvious that theregulations do not apply in the Rehoboth Gebiet since Basters are excluded fromthe definitionof "employee" or "work-seeker." In addition, they do not apply inNamaland, to which separate but virtually identical regulations were applied in1973. 3/Administration of labour bureauxAn employment bureau may be operated by an urban local authority designatedfor that purpose by the Minister of Bantu Administration and Development. Thebureau may operate sub-offices outside the area of jurisdiction of the localauthority, apparently as recruitment centres. 4/-Grounds for refusing to let Africans workSome of the grounds for refusing to approve or for cancelling a servicecontract, which are spelled out in regulation 3 (3) (i), are reasonable on their face.However, item (c), a determination that an African is still bound by an existingservice contract, constitutes a devious method of preventing AfricansEnactment No. 6 of 1972. Government Gazette No. 3633, 18 August 1972.2 No. 54 of 1968.3_/ Proclamation No. R. 32 of 1973 (Republic) q.v.), Government Gazette No.3780,9 February 1973._ Regulation 2 (1).

-Employment Bureaux Regulations, T.S.- 291from quitting their jobs, whether because the jobs themselves are undesirable orbecause the Africans could obtain better jobs elsewhere. §ince an Africanwho is refused the right to take up a Job may be subject to aremoval order, ., theadministrative penalty for quitting the job may be only siightly less. severe than the former criminal penalties. Criminal penaltiis for breach .ofemployment contract have been repealed in Namibia, as they have in theZRepublic.It should be pointed out that there seems to be no way for an Africanto appeal to higher administrative or Judicial authority against any refusalto permit him to take a job or any decision to cancel his contract. An Africancould, of course, refuse to obey a removal order issued against him as aconsequence of the decision to refuse his right to work; but removal itself is ana.1ministrative action carried out by the police, and apparently cannot be appealedto the courts. In any case, it is unlikely that any court wouldinterfere to prevent removal of an African in the absence of a showing of malafides. Such a showing is difficult in the best of circumstances and evenharder in a society in which everyone, including the judiciary, assumes the rightof whites to dispose of Blacks in the whole sphere of employment andresidence.

Definition of "workseeker"The effect of the definition of "workseeker", as read with regulation6 (1) and (2), is to make every male adult African in the "white area" aninvoluntary labourer or else subject to removal back to a "homeland."Regulation 6 (4), dealing with African women, was not found in the March1972 regulations, and its significance is not entirely clear. Apparently it meansthat an unemployed African woman in the "white area" is not automaticallysubject to involuntary labour or removal if she has some other means of supportand is not, in fact, looking for work.Procedure for workseekersDespite the use of the word "suitable," it appears that an African hasno say in determining whether or not work may be suitable for him. If he refusesthree jobs in succession because they are not suitable -- let alone desirable -he canbe removed. On the other hand, if the employment officer decides that onlycertain rare classes of jobs are suitable for a particular African, andnone of these is available, the African may be returned home on the grounds thatthere is no suitable work for him." Although the first part of regulation 6 (2) refers to workseekers in!non-proclaimed areas, the final proviso is couched in general terms andZ'apparently applies to Africans in the proclaimed area as well-:- Informationfrom the Territory indicates that this is the case. It seems *ssible that the5/ By Act No. 9 of 1974, section 51 and Schedule; and by the repeal of theMasters and Servants Proclamation of 1920 (S.W.A.)..

Employment Bureaux Regulations, T.S.- 292harsh rule forbidding Africans to seek work in another labour officer's district hasa double motivation: It discourages initiative, as well as mobility, on the part ofthe Africans; and it simplifies administration of the new labour recruitmentsystem by keeping each district an integral and c:bsed system.vProcedure for emnloyersRegulation 7 (2) spells out the procedure that an employer shall follow if he doesnot want to hire an African referred to him by an employment officer. Theregulations set no maximum number of times a potential employer may refuse tohire an African referred to him -- in contrast to the provision that sends an Africanback to his "homeland" if he turns down three successive job offers.Regulation 8 (2) lists exceptions to the requirement that an employermust notify the labour bureau when he hires an African. These include: hiring forjobs lasting less than a week; hiring of Africans who are "togt," (casual) labourersor independent contractors (so licensed by the employment officer); hiring anAfrican registered by the same employer in another area; or hiring an Africanregistered with another employer in the area who permits him to work forsomeone else in his spare time. The third exception apparently enabled TsumebCorporation to transfer its employees from its Matchless mine to the mines atTsumeb during the general strike in 1971-72.

When the labour bureau receives notice of hiring, the employment officer mustdetermine whether there is any reason why the contract of service cannot beregistered. (See "grounds for refusing to let African take job.") If there is none, heregisters the contract and sends notification to that effect to both employer andemployee. 6/The employer's obligation to notify the employment officer if a contract isterminated includes the obligation to notify him if the employee leaves withoutpermission. The employment officer is required to try to trace the abscondingemployee and to notify the appropriate "homeland" authorities of his unauthorizedabsence. 7/__plo _er's right to cancel a contract of serviceAlthough the provisions of regulations 4 and 4A (dealing with the complaints ofemployees and employers, respectively) may appear to be even-handed, since ineach case a Justified complaint may result in cancellation 6f a service .:ontract,the practical effects are not at all the same. If a service contract-is cancelled'on the complaint of an employee, his former employer is free to.seek another employee without any penalty for the actions or c9nditions whichNarranted cancelling the service contract. The employee will be referred to~/ Regulation 9 (1).Regulation 10.

Employment Bureaux Regulations, T.S.- 293another job -- provided he has not been tagged as an "agitator" to be removedfrom the area. On the other hand, if a service contract is cancelled at the# behestof an employer, the employee may be removed from th& area and returned to his"homeland," or sent elsewhere to work. Thus an empQoyee is potentially subjectto a severe administrative penalty for his conduct &hile an employer is subject tothe mere inconvenience of having to obtain a new employee.It may be assumed that a government official is far more likely to find anemployer's complaint justified than an employee's complaint.Removal of AfricansAlthough the proclamation itself provides that it does not apply in the"homelands," regulation 4 (4) provides that any employee "who has entered intoan agreement of employment outside the area in which these regulations apl andwho fails to take up employment under such agreement of employment"(emphasis added) shall be deemed unlawfully in the area.Regulation 4 (5) provides that an African deemed unlawfully in an area may bedetained in custody pending removal.Any person who employs an African in contravention of the regulations may, inaddition to other penalties, be required to pay all the expenses of removing theAfrican. 8/ In most other cases the costs of food, lodgingetc. resulting from thedetention and removal of an African may be recovered from any money in hispossession or accruing to him from any source. 9/ It appears that this can beaccomplished by simple administrative fiat.Taxes and fees

Every employer in the proclaimed area must pay the employment officer ofthe district a monthly fee of RO.50 for each employee; employers in non-proclaimed areas pay RO.25 per month per employee. A casual labourer orindependent African contractor pays the same monthly fee as an employer in thearea. LOYRegulation 11 (4) provides that such fees shall be paid into the Native RevenueAccount established by section 17 of the Urban Areas Proclamation of 1951. 11/The proviso to that subsection permits an employment officer to recoup from theAccount certain expenses incurred by him in connection with employees fromoutside the "white area."Offences and penaltiesAll offences under the regulations may be tried in Native Commissioners ormagistrates' courts, which are granted jurisdiction to impose the maximumsentence provided under regulation 13. 12/8_/ Regulation 13 (3).2/ Regulation 4 (6), (7).LO Regulation 11 (1) - (3).11/ Proclamation No. 56 of 1951, q.v. 12/ Regulation 13 (2).

- 294 -E4PLOYKENT BUREAUX REGULATIONS FOR NAMAS PROCLA4ATIONNo. R. 32 of 1973 (Republic)*(Never legally in effect in. Namibia)GeneralThis Proclamation applies to the Namas regulations which are virtually identicalto those applied to all other Africans in the Territory by the general EmploymentBureaux Regulations promulgated by Proclamation No. R. 323 of 1972. 1/ Themajor difference between the two sets of regulations is the substitution of the term"Control Officer" in the Nana regulations for "Native Commissioner" in thegeneral regulations.These regulations supersede all existing inconsistent legislation governing theemployment of Namas. 2/Status of Namas under the regulationsThe decision to exempt Namas from the general Employment Bureau Regulations3/ while subjecting them to these similar ones reflects South African equivocationas to the status (racial classification) of the Namas. In general, Namas are treatedas Coloureds; 4/ that appears to be the reason they were excluded from thepurview of the 1972 regulations. By promulgating these 1973 regulations for theNamas, however, the South African government is treating them, in effect, like allother Africans insofar as labour contracts are concerned.Area of apDlication of the regulationsThe Proclamation states that the regulations apply to the entire Territory outsidethe "homelands" as defined in section 2 of the Native Nations Act. 5/ Namaland isnot one of the "homelands" defined therein.Administration of labour bureaux in the Police Zone

Regulation 2 (1) establishes an employment bureau in each Control Officer's areaof jurisdiction. These bureaux are under the overall supervision of the ChiefControl Officer. 6/Each employment bureau is headed by an employment officer, who is a peaceofficer, 7/ entitled to make arrests under the Criminal Procedure Ordinance. 8/ Hismost important function is to determine whether a Nama may take a job orcontinue working, at his existing job. 9/* Published in Government Gazette No. 3780, 9 February 1973. 1/ Publishedin Government Gazette No. 3742, 22 December 19-.'2 (q.v.). 2/ Regulation 12..3/ Proclamation No. R. 323 of 1972, Regulation 1, definiti& of "'employee' and'workseeker'."4/ See Digest, infra, ApDendix III, "Assimilation of Namas to Coloureds." /Development of Self-Government for Native Nations of South-West Africa Act,No. 54 of 1968.6/ Regulation 3 (1). 7/ Regulation 2 (2).8/ Ordinance No. 34 of 1963.9/ Regulation 3 (2), (3), (4), (7).

Employment Bureaux Regulations for Namas- 295Grounds for refusing to let Namas take a job or continue workingAn employment officer can refuse to let let a Nama take i job or can cancel hisservice contract, so that he cannot continue working, if the officer is satisfied that:the employment contract is not bona fide; orthe Nama is still bound by an existing contract; orthe law forbids the Nama to be in the area or to take the job; orthe Nama has refused to submit to medical examination or has a dangerousdisease; orthere is no accommodation for the Nama or he fails to occupy an availableaccommodation; orthe Nama is under 16 and lacks parental consent to work. i/Definition of "workseeker"Every employable male Nama over the age of 16 who does not have a job is ineffect defined by the regulations as a "workseeker" unless he is attending school.ll/ It appears that Nama women in the same age group are also treated asworkseekers if they seek employment or are dependent on employment for theirlivelihood. 12/Procedure for workseekersThe procedure for workseekers is substantially the same throughout theTerritory wherever the regulations apply. There are minor differences, however,beLween the "proclaimed area" (technically all areas proclaimed by the territorialAdministrator, practically all urban and major industrial and mining areas) 13/and the remainder of the Police Zone.Regulation 6 (1) requires every workseeker in the proclaimed area to

report to the district employment bureau within 72 hours of becomingunemployed. In the non-proclaimed area an employable Nama has 17 days,instead of three, toreport to the office. 14/When a Nama reports to the district employment bureau, he is referred to anemployer offering "suitable" employment. If no suitable employment is availableor if the workseeker turns down successive job offers, he is subject to removalfrom the area. In a non-proclaimed area, however,:if the Nama cannot be placedby the office; the latter may give the works~eker a document permitting him toseek work on his own within the district fop a period of 14 days days. j;J10/ Regulation 3 (3) (i.11/ Regulation 1, definition of "'employee' and 'workseeker'"; regulation 6 (1). 12/Regulation 6 (4).13/ It is defined in the Natives (Urban Areas) Proclamation, No. 56 of 1951(S.W.A.L4 egulation 6 (2).-15/ Regulations 3 (5), 6 (3) (iv).

EmDployment Bureaux Regulations for Namas- 296Namas are forbidden to go from one control officer's district to another in order toseek work or take available jobs. 16/If a Nama has found a job and his contract is registered by the employmentofficer, the employee and his employer receive official notice to that effect fromthe officer. The notification sent to the worker serveslas another pass. :He mustretain it as long as he continues to work for the sam employer; and-the employer is required to endorse the notification monthly to show that theemployment is continuing. Every Nama employee must produce this endorsednotice on demand by any employment officer or other white official. 17/ .Procedure for emDloyersRegulation 5 (1) requires everyone in the Police Zone who ordinarily employs anyNamas to register as an employer with the district employment bureau.Every person who wishes to employ a Nama must notify the district employmentbureau. In the proclaimed area an employer is prohibited from hiring any Namanot referred to him by the district employment officer whereas an employer in thenon-proclaimed area may obtain employees through the district bureau or fromoutside the district. 18/Every employer who hires a Nama must notify the employment bureau. Thebureau determines whether there is any reason to refuse to register theemployment contract; if there is none, it shall be registered. 19/Every employer is required to notify the district employment bureau if theservice contract is terminated for any reason. 20/Right of employee to quit his jobIt is a breach of contract for a Nama employee to quit his job before hiscontract expires or is cancelled by a control officer. If he is dissatisfied with hiscontract, his employer or his working conditions, his only remedy is

to complain to the employment officer. The latter, in turn, informs the controlofficer of the complaint. After consulting the employer, the control officermadeclare the contract cancelled if his investigation shows that the complaintis justified. In that case, the Nama is referred to the employment bureau toobtain a new job. 21/A Nama who breaks his contract may be refused permission to take anotherjob in either the proclaimed or a non-proclaimed area; if he has enteredinto another service contract, it may be cancelled. In addition, he may bet'deemed to be unlawfully in the white area and be subject to removal. 22/,16/ Regulation 6 (2), further proviso. 17/ Regulation 9 (1), (3).18/ Regulations 5 (3), (4); 7 (i). 19/ Regulations 8 (1); 9 (1)20/Regulation 10 (1). 21/ Regulations 3 (6); 4 (1), (2),(3).22/ Regulations 3 (3) (i) (c); 4 (4), (5).

Employment Bureaux Regulations for Namas- 297Employer's right to cancel a contract of serviceThe right of an employee to seek cancellation of his service contract is paralleledby the right of the employer, granted by regulati-pn 4 (second) 23/ to lodge acomplaint against his employee for "misconduct," .nsatisfactory service, refusal orfailure to obey orders, or other conduct "prejudicial to the interests of theemployer." If the control officer finds the complaint warranted, he declares thecontract terminated and may order the employeeremoved to his "homeland."Removal of NamasA control officer may order a Nama and his family, if any, to return home or to goto any other place if:there is no suitable employment to offer the Nama; orhe has been refused permission to be employed in the area; orhe has refused offered jobs three successive times; orhis service contract has been cancelled.If the Nama refuses to obey such an order, he is deemed to be unlawfully in thearea and is subject to being removed at his own expense. 2_/Taxes and feesEmployers of Namas are required to pay monthly fees for each Nama employed.Namas working as casual labourers or independent contractors are required to paythe same monthly fees. ?5Offences and penaltiesRegulation 13 (1) sets a fine of up to R100 ($115) or, in default of payment,imprisonment for not more than six months for contravention of the regulations.In th6 case of a continuing offence a fine of not more than R20 ($23) may beimposed for each day it continues or, in default of payment, a proportionateperiod of imprisonment not to exceed six months.

In addition to the penalty prescribed above, a person who employs a Nama incontravention of the regulations may be ordered to pay the travelling expenses inremoving the employee. 26/23/ Apparently should be regulation 4A; see Employment Bureaux Regulationspromulgated by Proclamation R. 323 of 1972, regulatioD 4A. 24/ Regulations 3(5); 4 (5), (6). ?1 Regulation 11 (1), (2), (3). 26/ Regulation 13 (3).

- 298 -Enployment Bureaux Regulations for Namas ProclamationTechnical supnlement- GeneralThese regulations are virtually a word-for-word copy of the December1972 (i.e., the revised)general Employment Bureaux Regulations, with onlysuch modifications as are essential to take account of the fact that for mostpurposes Namas are treated as Coloureds, not Africans. (See "Status of Namas.")These regulations supersede earlier legislation only as long as theregulations remain in effect. If the regulations are repealed, the earlierlegislation once again comes into force, according to regulation 12.Status of Namas under the regulationsThese regulations assure that Namas are subject to the same rigorouslabour controls as other Africans while achieving this under separate regulationsnot applied to other Africans.The employment bureaux for Namas are located in the districts of 'b ontrolc'ficers' not of Native Commissioners. It would not be surprising, however, ifNative Commissioners or Assistant Native Commissioners were made "controlofficers" for the purposes of the regulation, to avoid administrative duplication.Similarly, it would not be surprising if employment officers under the generalEmployment Bureaux Regulations were named to serve as employment officersunder the Nama regulations and if the same employment bureaux served Namasand all other Africans.As far as the copying of the 1972 regulations is concerned, this can best be seen inthe second regulation 4, which deals with complaints of employers againstemployees. When this provision was inserted as a separate regulation in theDecember 1972 revision of the general Employment Bureaux Regulations whichhad first been issued in March 1972, this new regulation was inserted asregulation 4A between the existing regulations 4 and 5, rather than beingnumbered5. Had it been numbered 5, the original 5 and all subsequent regulations wouldhave had to be renumbered accordingly. The Nama regulations copied thisnumbering, as well as the text, except that the copyist failed to add the "A" to thesecond "4". So the Nama Employment Bureaux Regulations now have tworegulations numbered "W", instead of one numbered "4" and the other "4A".;Area of application of the regulationsBy the terms of the Proclamation the regulations apply t all parts of the Territoryexcept Damaraland, Hereroland, Kaokoland, Eastern Ciprivi, Ovamboland, andany other "homeland" recognized by the State President.

Employment Bureaux Regulations for Namas, T.S.- 299AdministratLion of the labour bureauxAn employment bureau may be operated by an urban local authority designatedfor that purpose by the Minister of Coloured, RehobotU and Nama Relations. Thebureau may operate sub-offices outside the jurisdiction'of the local authority,apparently as recruitment centres. i/Grounds for refusing to let Nanas workSome of the grounds for refusing to approve, or for cancelling, a service contractwhich are set out in regulation 3 (3) (i) are reasonable on their face. However,reason (b), a determination that an African is still bound by an existingemployment contract, constitutes a devious method of preventing Namas fromquitting their jobs, whether because the jobs are themselves undesirable orbecause the workers could get better jobs elsewhere. Since a Nama who is refusedthe right to take a job may be subject to a removal order, the administrativepenalty for quitting his job may be only slightly less severe than the formercriminal penalties for breach of contract.There seems to be no way for a Nama to appeal to higher administrativeor judicial authority against any refusal to permit him to take a job or decision tocancel his contract. A Kama could, of course, refuse to obey a removal orderissued against him as a consequence of a decision to refuse his right to work; butthe removal itself is an administrative action, carried out by the police, andapparently cannot be appealed to the courts. In any case, it is unlikely that a courtwould intervene to prevent removal of a Nama in the absence of a showing ofmala fides. Such a showing is difficultunder the best of circumstances and even harder in a society in which everyone,including the judiciary, assumes the rights of whites to dispose of Blacks in thewhole sphere of employment and residence.Definition of "workseeker"The effect of the definition of "workseeker," as read with regulation6 (1), (2) and (4), is to make every male adult Nama found outside the excludedhomelands (Damaraland, Hereroland, Kaokoland, Kavangoland, Eastern Caprivi,and Ovamboland) an involuntary labourer or subject to removal to his homeland.As the Proclamation is drafted, it appears that a Nama in his "homeland" is alsosubject to these regulations requiring him to register for work; however, it wouldseem that normally economic pressure would be enough to force Namas in the"homeland" to register for work unless they were engaged in farming or someother gainful occupation.The significance of regulation 6 (4), applying to Nama women, is not entirelyclear. Apparently it means that an unemployed Nama woman in thel/ Regulation 2 (i).

Employment Bureaux Regulations for Namas, T.S.- 300

"white area" is not automatically subject to involuntary labour or removal if shehas some other means of support and if she is not in fact looking for work. It isunlikely, however, that many adult unmarried women in the "white area" can infact avoid the workseeker status.Procedure for workseekersIt appears that a Nama has no say in determining whether or not work may besuitable for him. If he refuses three job offers in a row, on the grounds that thework is not suitable, let alone desirable, he can be removed. On the other hand, ifthe employment officer decides that only certain classes of work are suitable for aparticular Nama, and none of these is available, the Nama may be returned homeon the grounds that there is no suitable work for him.Although the first part of regulation 6 (2) refers to workseekers in the non-proclaimed areas, the final proviso is couched in general terms and apparentlyapplies to Namas in the proclaimed areas as well. Information from the Territoryindicates that this is the case.Procedure for employersRegulation 7 (2) spells out the procedure that an employer shall follow if he doesnot want to hire a Nama referred to him by an employment officer.The regulations set no maximum number of times a potential employer mayrefuse to hire a Nama referred to him in contrast to the provision that sends aNana back to his "homeland" if he turns down three successive job offers.However, in a time of labour shortage an overly particular employer may havedifficulties with the employment bureau bureaucracy.R-egulation 8 (2) lists exceptions to the requirement that an employermust notify the employment bureau when he hires a Nama. These include: hiringfor jobs lasting less than a week; hiring of "togt" (casual) labourers orindependent contractors; hiring a Nama registered by the same employer inanother area; or hiring a Nama registered in the employ of another employer inthe area who permits him to work for someone else in his spare time.The employer's obligation to notify the employment officer as to termination of acontract covers the situation in which an employee decamps. The official isrequired to try to trace the absconding employee.Employer's right to cancel a contract of serviceAs to the numbering of the relevant regulation, see above in the technicalsupplement, "Status of Namas."The provisions of the first regulation 4 (dealing with. complaints ofemployees) and of the second regulation 4 (dealing with coalaints of employers)

, nployment Bureaux Regulations for Namas, T.S.- 301may appear to be even-handed, since in each case a justified complaint may resultin the cancellation of a service contract. However, the practical effects are not atall the same. If a service contract is " ancelled onthe complaint of a Nama, his former employer is free to se4 another employeewithout suffering any penalty for the actions or conditions-_which warrantedcancelling the contract. The employee will be referred to -nother job -provided

that he has not been classified (unofficially) as an "agitator," to be removed fromthe area under one pretext or another. On the other hand,if a service contract is cancelled at the behest of an employer, the employee maybe removed from the area and returned to his "homeland," or sent elsewhere. Thusan employee is potentially subject to a severe administrative penalty for hisconduct while an employer is subject to the mere inconvenience ofhaving to obtain a new employee.It may.be assumed that a government official is far more likely to find anemployer's complaint justified than an employee's complaint.Removal of NamasAlthough the Proclamation itself provides that it does not apply in the"homelands," regulation 4 (first) (4) provides that a Nama who "has entered intoan agreement of employment outside the area in which these regulations applyand who fails to take up employment under such agreement of employment"(emphasis added) shall be deemed unlawfully in the area.Subsection (5) provides that a Nama deemed unlawfully in an area may bedetained in custody pending removal.Any person who employs a Nama in contravention of the regulations may,in addition to other penalties, be required to pay all expenses of removing theNama. 2/ In most other cases the cost of food, lodging, etc., resulting from thedetention and removal of a Nama may be recovered from any money in hispossession or accruing to him from any source. 3/ It appears that this can beaccomplished by simple administrative fiat.Taxes and feesEvery employer in the proclaimed area must pay the employment officer ofthe district a monthly fee of RO.50 for each employee; employers in non-proclaimed areas pay RO.25 per month per employee. A casual labourer orindependentNama contractor pays the same monthly fee as an employer in the area. 4_/Regulation 31 (4) provides that such fees shall be paid into the Native RevenueAccount established by section 17 of the Urban Areas Proclamation of 1951. /The proviso to that subsection permits an employment officer to recoup from theAccount certain expenses incurred by him i connection withemployees from outside the "white area."2/ Regulation 13 (3). 3/ Regulation 4 (first) (6), (7).V-/ Regulation 11 (1) - (3). 5j Proclamation No. 56 of 1951, q.v.

Employment Bureaux Regulations for Namas, T.S.- 302Offences and penalties. All offences under the regulations may be tried in control officers' ormagistrates' courts, which are authorized to impose the maxim4m sentenceprovided under regulation 13. 6/6/ Regulation 13 (2).

- 303 -

DMORALITY PROCLAMATIONNo. 19 of 1934 (South West Africa) as amended.ReneralThis Proclamation prohibits illicit sexual intercourse between "Europeans"-nd "non-Europeans" (originally between "Europeans" and "natives"). Theprohibition of Mixed Marriages Ordinance l/ supplements this Proclamation byforbidding licit sexual relations across the colour line.Punishable actsSection 1 2/ makes it an offence, punishable by not more than five years'imprisonment, for a European man to have consensual illicit sexual intercoursewith a non-European woman or for a non-European man with a European woman.Section 2 3/ makes it an offence, punishable by not more than four years'imprisonment, for a woman to permit a man to have illicit intercourse with heracross the colour line.ProcuringProcuring a female to have illicit sexual relations across the colour line orassisting or abetting such intercourse is made an offence, punishable by up to fiveyears' imprisonment. _4/Property owner permitting an offenceA property owner or occupier who knowingly permits the use of his premisesfor a contravention of the Proclamation is guilty of an offence and liable toimprisonment for not more than five years. /Burden of proofSection 5 provides that the accused has the burden of proving marriage soas to establish that intercourse was not illicit.Removal of offenders not born in TerritorySection 6 provides that the Administrator may remove from the Territory any mannot born in the Territory who is convicted of any offence under the Proclamation,as well as any woman not born in the Territory who is conyicted of_rocuring or of permitting her premises to be used for commission of an offencentgainst the proclamation. Such person shall be deemed a prohibited immigrant.1/ Ordi'nance No. 19 of 1953.2/ As amended by Ordinance No. 20 of 1953, section 1. 3/ As amended byOrdinance No. 20 of 1953, section 1. '/ Section 3./ Section 4.

Immorality Proclamation- 3o4DefinitionsSection 7 6/ defines Europeans and non-Europeans by appearance or by "generalacceptance and repute."However section 7bis adds that:Any person who seems in appearance obviously to be a European or anonEuropean, as the case may be, shall for the purposes of this Proclamationbe deemed to be such, until the contrary is proved.

6/ Substituted by Ordinance No. 20 of 1953, section 3. 7/ Added by OrdinanceNo. 20 of 1953, section 4.

- 305InLmorality ProclamationTechnical supplementGeneralOrdinance No. 20 of 1953, section 1, substituted "non-Euopean" for "native" inthe Proclamation. "European," of course, means "white." "NonEuropean" or"nonwhite" is understood to include Coloureds, whereas "native" does not.Punishable actsThis p:roclamation does not apply to rape, attempted rape, indecent assault, orviolation of a female minor or incompetent. Such offence are covered by thegeneral criminal law (including special legislation relating to incompetents)regardless of the race of the persons involved.Section 2bis 1/ makes it a sufficient defence for the accused to show to thesatisfaction of the court that he or she believed that the person with whomintercourse was had was of the same racial grouping as himself or herself,"Illicit" intercourse refers to intercourse between persons not married to eachother. 2/ The effect of the Prohibition of Mixed Marriages Ordinance read withthis Proclamation is to make all intercourse across the colour line illegal unlessthe parties were married to each other before 1953 -- and have remained married.Removal of offenders not born in the TerritorySection 6, interestingly, does not provide for the removal of women who engagein illicit consensual intercourse across the colour line although it does provide forthe expulsion of men who engage in the same act. From the wording of thesection, the difference in treatment must be deemed deliberate.Persons subject to removal may be held in custody until they are expelled.DefinitionsThe definitions of "Europeans" and "non-Europeans" in this Proclamationare similar to those found in the Immorality and Prohibition of Mixed MarriagesActs 3/ as first enacted. These definitions proved unsatisfactory, from thegovernment viewpoint, in many cases; and it seems likely that they would in theTerritory if put to the test in many cases.South Africa is now dealing with the problem of race definition at the frontier ofwhiteness -- though not without many hardships -- by population registration. TheTerritory is moving in the same directionsomewhat covertly.1/ Added by Ordinance No. 20 of 1953, section 2. 2/ Section 7 (substituted byOrdinance No. 20 of 1953, section 3);and see "Burdenof Proof."3/ Act No. 23 of 1957 and Act No. 55 of 1949, respectively. I/ See the IdentityDocuments in South-West Africa Act, No. 37 of 1970.

- 306 -KAVANGO CONSTITUTION PROCLAMATIONNo. R. 115 of 1973 (Republic)*

(Never legally in effect in Namibia)4eneralThis Iroclamation is designed to transform Kavango ("Kavangoland", Okavango")from a "native nation." with legislative council into a "self-governing" area and tospell out how "self-governmen' shall function. It is drafted in terms of the 1973amendments to the Native Nations Act.VSection 34 repeals most of the Kavango Legislative Council Proclamation 2/which established the Legislative Council."Self-governing" areaSection 2 declares Kavango to be a "self-governing" area within the meaningof the amended Native Nations Act.Legislative CouncilSection 3 varies the composition of the existing Legislative Council byproviding that it shall have 30 numbers: the chief of each Kavango tribe; twomembers elected by each of the five tribal authorities; and three persons electedfrom each tribe by the qualified voters of that tribe. 3/Kavango Constitution ProclamationThe Legislative Council is required to meet at least annually at Rundu, the seat ofthe government. Its life is five years unless it is sooner dissolved by the StatePresident. V_/The Legislative Council is required to keep a record of its votes, proceedings andlaws,as well as relevant events, in the three official languages, Kwangali, English,and Afrikaans. Its enactments are termed "acts". /FranchiseEvery Kavango over 18 is qualified to vote for elected members of the LegislativeCouncil if he or she'has a tribal registration card and is not disqualified_y reason of criminal record, incompetence, or listing as a "communist."Published in.Government Gazette No. 3880, 4 May 1973._/ Development of Self-Government for Native Nations in SoutI4West AfricaAct,No. 54 of 1968, as amended.2/ Proclamation No. R.196 of 1970. 3/ Section 3.4/ Sections 7, 10. _/ Sections 31, 32, 33./ Sections 5, 6 (i), (c), (d), (e), (f).

Kavango Constitution- 307The CabinetThe Cabinet consists of a Chief Minister and four other "ginisters. Theministers are elected by members of each tribal authority frok among their.own ranks, and the ministers choose one of their own group to je Chief Minister.7/The ministers hold their offices for the life of the Legislative Council." However provision is made for the Legislative Council, for sound and cogentreasons, to petition the State President for dismissal of the Chief Minister; and

the Chief Minister may request the State President, through theCommissionerGeneral and the Minister of Bantu Administration andDevelopment, to dismissa minister. 8/Kavango Constitution ProclamationThe Chief Minister assigns responsibility for the government departmentsto the various ministers; allocates departmental powers, duties and functions; andmay reorganize departments in the interests of better administration. Hepresides at Cabinet meetings, but questions are decided by majority vote. 9/The Cabinet may appoint committees and co-opt -other members of theLegislative Council to serve on such committees. L0/Chairman of the Legislative CouncilThe members of the Legislative Council elect one of their members asChairman and another as Deputy Chairman. These officers usually serve for theterm of the Council. ii/Status of Kavango ChiefsFollowing section 6B 12/ of the Native Nations Act, section 30 of theProclamation provides that every Kavango chief "shall continue to enjoy thepersonal status ... hitherto enjoyed" and that he shall take precedence overthe Chief Minister, in ceremonial and tribal matters and occasions if unconnectedwith the business of the Legislative Council.-~j Sections 13, 14, 15.Section 19.Zq/ Sections 22, 23.10/ Section 23.I/ Sections 24, 27, 28.121 Added by Act No. 20 of 1973, section 4 (1).

- 308 -Kavango Constitution ProclamationTechnical supplement-e islative CouncilQualifications for members of the Legislative Council are set out in section 6.With the exception of a minimum age of 25, they are the same as for electors.The procedure for election of elected members is set out in great detail inProclamation No. R. 116 of 1973. l/ FranchiseThe registration or identity document required of voters is issued by the Kavangoauthorities under the provision of the Kavango Nation Registration Enactment of1972. 2/ The CabinetThe procedures for election sections 14, 15, and 19."and removal of Cabinet members cre found inGovernment Gazette No. 3880, 4 May 1973. Government Notice No. R. 222 of1972, published in Government Gazette No. 3783, 16 February 1973.

- 309 -KAVANGO LEGISLATIVE COUNCIL PROCLAMATION

No. R. 196 of 1970 (Republic), as amended(Never legally in effect in Namibia)All but a few provisions of this Proclamation / have been repealed by theKavango Constitution Proclamation of 1973, 2/ which granted "self-government"to the area.The unrepealed sections are:Section 1, establishing the Kavango Legislative Council;Section 7, authorizing South African offici&ls to attend sessions of theLegislative Council; andSection 17, which contains definitions.1_/ Government Gazette No. 2770, 1 August 1970._/ Iaid., No. 3880, 1 May 1973.

- 310 -NATIVE ADMINISTRATION PROCLAMATION OF 1922No. 11 of 1922 (South West Africa), as amendedOtneralS This Proclamation contains the basic pass legislation of the Territory:Inter alia, it prohibits any non-white from entering the Territory without a permit;and it requires all Africans to have a pass to leave their place of residence oremployment.The Proclamation also provides for the establishment of native reserves (nowconverted into "homelands") under territorial law, superseding Germanprovisions.The Proclamation must be deemed superseded in part by the Native Nations Act,proclamations issued under it as to specific "homelands", and the EmploymentBureaux Regulations Proclamations.Permit to enter the TerritorySection 4 1/ prohibits any person "other than a European" from enteringthe Territory except under permit issued by the Minister of Bantu Administrationand Development.Subsection (3) provides for a fine of up to R20 or, in default of payment,imprisonment with or without hard labour for up to three months for contraveningthe prohibition or any condition of a permit to enter. A person convicted undersubsection (3) may be ordered to leave the Territory, and if he fails to depart, hemay be removed under the Undesirables Removal Proclamation of 1920. _/Africans prohibited from travelling without a passSection 5 prohibits all but a few exempted Africans from leaving the Territory orfrom travelling within it without a pass.Exempted Africans include, inter alia, policemen and government messengerswhile on duty; missionaries; teachers; employees of whites while accompanyingtheir employers; chiefs, headmen, and members of certain official bodies,including legislative councils and tribal and community authorities; and Africanspossessing a special certificate of exemption. 3/:7 An African may travel within the Territory on a pass issued by his employer6i by a magistrate, native commissioner, superintendent of a location or a reserve,

o(ficer in charge of a South West African Police post, or other ,suthorizedgoverntent official. A pass to leave the Territory can be issued only- by amagistrate, Native Commissioner, or officer in charge of native affairs. !/i1/ Subsection (1) substituted by Proclamation No. 24 of 1935; subsection (2)amended by Ordinance No. 24 of 1960.2/ Section 4 (4), amended by Union Proclamation No. 119 of 1958. 3/ Section 6,amended by Proclamation No. 38 of 1911, Union Proclamation No. 119of 1958, and Proclamation No. 218 of 1974 (Republic).h/ Section 11 (1), (2), substituted by Proclamation No. 11 of 1927, section 3, asamended by Proclamation No. 15 of 1928.

Native Administration, 1922- 311Section 12 (3) provides that the Minister of Bantu Administration andDevelopment may decide to issue or refuse a permit for an African to travel espit..an.-pr-yisi on of the Proclamation.Production of passes- Any African who is outside the location, reserve, or place where he lives or-works may be required by any police officer or other authorized official toproduce his pass or certificate of exemption on demand. Failure to do so ispunishable by a fine of R2.00 for a first offence or, in default of payment, byimprisonment with or without hard labour for not more than 14 days. For asubsequent offence the penalty is a fine of not more than R6.00 or, in defaultthereof, imprisonment with or without hard labour for not more than one month.5/Other pass offencesOther offences relating to passes include issuing a pass without authority andtransferring a pass to a person not entitled thereto, for which the penalty is a fineof not more than RIO or, in default of payment, imprisonment for up to onemonth, with or without hard labour. / Offences for which the penalty is a fine notexceeding R40 or imprisonment for up to three months include: maliciouslydepriving an African of his pass or withholding it from him; destroying, altering,forging, or falsifying a pass or knowingly uttering a forged or falsified pass; orunauthorizedly giving a pass to an African not in the employ of the person givinghim the pass. TILimitation on Africans on farmsSection 13 / makes it unlawful for a farmer to allow any adult maleAfrican not employed by him to live on his farm; to employ more than 10 adultmale Africans-on the farm where he resides or more than five on any other farm;or to accept" any payment in cash or kind from an African for the right to grazestock on his farm.Section i4 9/ empowers any magistrate, medical officer, Native Commissioner,superintendent of a native location or reserve, or white police officer to enter anypremises to determine the number of Africans living there and to inspect thepremises.Establishment of native reserves

Section 16 10/ authorizes the Minister of Bantu Administration and Developmentto set aside native reserves for the "sole use and occupation" of Africans ad toissue regulations binding the inhabitants of such reserves.Section 10, amended by Proclamation No. 11 of 1929, section 10.Sections 7, 9.Section 8. =Section substituted by Proclamation No. 11 of 1927, sectio 4; subsection (1)(b)and (s) further substituted by Proclamation No. 30 of 1938./ Substituted by Proclamation No. 15 of 1928, as amended by Proc. No. 43 of1929. 10/ Amended by Proclamation No. 6 of 1943.

Native Administration , 1922- 312This section must be considered superseded in part by the inconsistent provisionsof the Native Nations Act. 11/ RegulationsSection 20 empowers the Minister to issue regulations on matters covered by the1_/ Act No. 54 of 1968, as amended.

- 313 -Native Administration Proclamation of 1922Technical supplement.GeneralThe Minister of Bantu Administration and Development (or, in a-feu- oases-,theState President) has been substituted for the Administrator in this Proclamation inaccordance with section 3 of the South-West Africa Bantu AffairsAdministration Act, No. 56 of 1954, supplemented by Union Proclamation No.119of 1958.The provisions dealing with passes and with the limitation on the numberof Africans permitted on white farms 1/ do not apply in &amboland or theKavango area or in any other area north of the Iblice Zone to which the Ministerdetermines they should not apply. 2/Permit to enter the TerritorLIt would appear that the permit to enter the Territory should be issued bythe State President, rather than by the Minister of Bantu Administration andDevelopment, at least if a Coloured person is involved. However, if section 3of Act No. 56 of 1954, as supplemented by Union Proclamation 119 of 1958 (seepreceding rubric), is strictly followed, it is the Minister who issues all suchpasses.Africans prohibited from travellinE without passThe penalties for travelling without a pass are the same as for failureto produce a pass. 3/ The R2.00 fine probably represented at least a month's payfor a farm labourer when the Proclamation was issued - and may representnearly a week's pay today.An African may obtain a pass to travel from an appropriate governmentofficial if he convinces the official that he didn't desert his employer and

that he is entitled to a pass but unable to obtain it from his employer due tothe latter's absence or for some other sufficient reason. 4/Section 12 (2) 2/ provides that an official who refuses to grant a travelpermit shall report his refusal to his immediate superior.An African cannot buy a railway ticket without a pass to travel from the i'place atwhich the ticket is issued to the place of destination of the ticket.--The official issuing the ticket may make a notation as to its issuance on the pass,indicating relevant details. 6/l/ Sections 1-15.2/ Section 18.3/ See sections 5, 10.E/ Section 11 (1), substituted by Proclamation No. 11 of 1927, section 3.5/ Substituted by Proclamation No. 15 of 1928._ Section 11 (4), substituted by Proclamation No. 11 of 1927, section 3.

Native Administration, 1922, T.S.- 314Limitation on Africans on farmsThe purpose of this section is to make sure that all failers share theavailable black farm labour, which, due to the prevailing co fditions ofemployment, is always in short supply.The penalty for violation of section 13 is a fine of not more than R20 or, in defaultof payment, up to one month in prison with or without hard labour. 7/ In anyprosecutionunder this section it is presumed that the land in question constitutes afarm within the meaning of the section. 8/Establishment of native reserves (now superseded by "homelands")By Government Notice No. 122 of 1923 the Administrator confirmed therights granted to various Africans in respect of certain areas in the Territory by theGerman government before the South African occupation. Those areas included:Berseba Reserve, district of KeetmanshoopBondels Reserve, district of WarmbadOkambahe Reserve, district of Omaruru Zessfontein Reserve, district of OutjoFranzfontein Reserve, district of Outjo, andSoromas Reserve, district of BethanieBy the same notice the Administrator set aside the following additional reserves:Neuhof Reserve, district of MaltahoheTses Reserve, district of Keetmanshoop Ovitoto Reserve, district of OkahandjaOtJituo Reserve, district of GrootfonteinEpukiro Reserve, district of GobabisAminuis Reserve, district of Gobabis, andKaokoveld Reserve, north of the "Police Zone" 21Of these reserves the boundaries of the following were altered in the yearsfollowing their establishment and preceding the changes brought about byimplementation of the Odendaal Plan:

Okambahe: boundaries altered by Government Notice No. 374 of 1947;Government Notice 215 of 1950; Ordinance No. 26 of 1958; and UnionGovernment Notice No. 1916 of 1959.Soromas: boundaries altered by Government Notice 485 of 1951.I/ Section 13 (1).8_/ Section 13 (3).9/ An expression no longer in use officially, comprising the southern twothirdsof the former German protectorate which was the focus of whitesettlement.

Native Administration, 1922, T.S.- 315Ovitoto: boundaries altered by Ordinance 23 of 1960; Proclamation 9 of1961; Republic Proclamation 248 of 1962Otjituo: boundaries altered by Government Notice 119 ofi.1929; GovernmentNotice 127 of 1936; Government Notice 347,of 1147Epukiro: boundaries altered by Government Notice 109 of 1925Aminuis: boundaries altered by Government Notice 109 of 1925; GovernmentNotice 87 of 1935; Government Notice 108 of 1935; GovernmentNotice 211 of 1942.Kaokoveld:boundaries altered by Government Notice 347 of 1947; GovernmentNotice 156 of 1948; Government Notice 201 of 1953; GovernmentNotice 262 of 1954.The following reserves were established by a later government notice (and theirboundaries altered thereafter, as indicated):Waterberg East Reserve, district of Otjiwarongo: established by GovernmentNotice 27 of 1924 and boundaries altered by Government Notice 156 of 1936;Government Notice 112 of 1940; Government Notice 347 of 1947; Proclamation84 of 1956; Union Proclamation 287 of 1956;OtJohorongo Reserve, district of Omaruru: established by Government Notice108 of 1925;Otjimbingwe Reserve, district of Karibib: established by Government Notice 21of 1928 and boundaries altered by Government Notice 162 of 1930;Eastern Native Reserve, districts of Grootfontein and Gobabis: established byGovernment Notice 347 of 1947;Warmbad Reserve, district of Warmbad: established by Government Notice 122of 1951;Unnamed area between the Okavango Native Territory and the Ovambomagisterial district: established b7 Government Notice 193 of 1952.All these provisions regarding reserves have been superseded by the NativeNations Act and the homelands created by it.RegulationsNumerous regulations have been issued under Proclamatiorrll of 1922, and thosewhich have been issued have been much amended, particulirly insofar as theydealt with rates levied on Africans and grazing fees for stock owned by Africans.

Native Administration, 1922, T.S.- 316Regulations covering the reserves generally were issued on 22 May 1924 inGovernment Notice No. 68 of 1924. These regulations covered management ofreserves, residence in reserves, commonage, and miscellaneous provisions. Mostof them have been superseded in whole or in part by the NatiVe Nations Act,particularly in the "homelands" where "authorities" or "legijlative councils"have been established. They are summarized below, including- some which arenow obsolete.Management of reserves: The regulations placed reserves under the Jurisdiction ofthe magistrate of the district. Under him were the (white) superintendents of eachseparate reserve in the magisterial district and African headmen - one for eachward of each reserve. The superintendent had routine administrative responsibilityfor allotting land; collecting taxes; issuing passes; branding African stock;registering Africans entering, living in, and leaving the reserve; and keeping aregister of all huts in the reserve. Regulation 7 makes it an offence to interfere inany way with a superintedndent, headman or medical officer carrying out hisfunctions in the reserve. 10/Residence in a reserve: The regulations forbid any white to erect any type ofbuilding in a reserve without the permission of the Minister of BantuAdministration and Development, and forbid Africans to build a hut withoutpermission. No school may be built without official approval. Buildings erectedwithout permission may be razed without compensation to the builder. Theauthorities allot home sites to Africans amd may transfer an African to a differentsite if that seems necessary.No resident African may leave or re-enter a reserve without a pass. A nonresidentAfrican may not enter a reserve without a permit, and no resident may allow anon-resident to occupy any property under his control without a permit. In aprosecution for violation of regulations relating to residence in a reserve, theperson charged has the burden of proving that the occupation is "lawful." 11i/Commonage: These regulations cover, inter alia, wood cutting; grass burning andgrass fires; keeping stock in the reserves and fees therefor (regulations repeatedlyamended); keeping dogs in the reserves; reservation of common grazing areas;stock diseases; and public watering places. 12/General: These regulations cover, inter alia, reporting of births and deaths in thereserves; thd power of magistrates to remove undesirable persons from thereserves; prohibition of intoxicating liquor in the reserves; permits; and appeals tothe magistrate from a superintendent or headman. Regulation 27bis 13/ empowersa superintendent to order any African who he finds is leading an "idle existence"without sufficieut lawful means of support to take up employment on essentialpublic works and makes failure to obey such an order an offence.10/ Regulations 1-9; regulation 2 amended by Government Notice 198 of 1938. lRegulatipns 10, 11, 13-16; regulation 12 repealed by Government Notice 129

of 1938; regulation 13 substituted by Government Notice 129 of 1938; regulation14 substituted by Government Notice 129 of 1938, as amended by GovernmentNotice 252 of 1948 and Union Government Notice 1564 of 1957.L2 Regulations 17-25; regulation 19 substituted by G.N. 124 of 1937; regulatola20 amended by G.N. 107 of 1939.13/ Added by G.N. 121 of 1952.

Native Administration, 1922, T.S.- 317Regulation 32 makes it unlawful to convene a public gathering or assembly in areserve without the permission of the superintendent. Regulation 34 14/ sets thepenalty for contravention of a regulation when no otheripenalty is specified as afine of R1O or, in default thereof, imprisonment of on month for a first offence*and it doubles the penalty for subsequent offences" i_/Applicatlon of the regulations: Regulation 35 16/ provides that the regulations dcdo not apply to the following reserves: Berseba; Bondels; Zessfontein; certaintribal areas within the Kaokoveld reserve; Ovambbland; and Okavengo NativeTerritory.iL/ Amended by Union G.N. 1564 of 1957. 15 / Regulations 26-34; regulation 29amended by U.G.N. 1564 of 1957, section 2. ii/ Added by G.N. 238 of 1930 andamended by G.N. 29 of I941 and U.G.N. 1990of 1959.

- 318 -NATIVE ADMINISTRATION PROCLAM4ATION OF 1928No. 15 of 1928 (South West Africa), as amended. GeneralThis Proclamation vested in the territorial Administrator, now the State-President or Minister of Bantu Administration and Development, total power tocreate and break up tribes and to appoint and remove chiefs.It regulates numerous aspects of tribal life, including, inter alia, the relationshipbetween the tribe as a whole and individual members and/or the chiefs, courts ofNative Commissioners, marriage and inheritance, and the conduct of Africans inthe reserves.Provisions inconsistent with the Native Nations Act of 1968 or withproclamations issued under it must be deemed superseded.State President's powers over chiefsSection 1 (a) empowers the State President to recognize or appoint chiefsfor tribes in the Territory and to make regulations as to their powers, duties andfunctions. Recognition or appointment of a chief may be permanent or temporaryand may, in either case, be withdrawn at any time. The State President maydetermine compensation for chiefs and set such conditions for recognition orappointment as he sees fit.Subsection (b) empowers the State President to remove any chief found guilty ofany "political offence" or for incompetence or other just cause and to order him toanother part of the Territory or to place him under supervision or restraint.

The Minister has similar powers with regard to headmen. i/Minister's powers in relation to tribesSection 1 (c) empowers the Minister to define the area of any tribe and to alter itat any time. Similarly, he may divide existing tribes into two or more parts oramalgamate two or more tribes or parts of tribes into one "as necessity or the goodgovernment of the Natives may in his opinion require...."Under subsection (d) he may, whenever he deems it expedient in the generalpublic interest, remove a tribe or part thereof from any place to any other-_ lace under such conditions as he may determine.itate President as the Supreme ChiefSubsection 1 (g) empowers the State President to "exercise all political power andauthority which according to laws, customs and usage! of Natives, are held andenjoyed by any supreme or paramount native chief."i_/ Union Proclamation No. 119 of 1958, schedule B, item 3.

Native Administration, 1928- 319State President not answerable to the courtsSection 2 provides that the State President cannot be .equired to answer in anyjudicial proceeding for any order, notice, rule, regulation or act done or permittedto be done in the exercise of the powers -onferred by the Proclamation.AdministrationSection 4 2/ provides for the appointment of a Chief Native Commissionerand other Native Commissioners, as well as superintendents of locations. NativeCormissioners and magistrates are considered deputies of the Minister in dealingwith African affairs. 3/Relations between a chief and a tribeSection 5 provides that a chief cannot bind his tribe except when a majority of theadult males approve his action in a special meeting and the Minister gives hisconsent.Section 6 prohibits any judicial proceeding concerning ownership, acquisition oroccupation of land brought by a tribe or a member thereof against the chief oragainst the tribe, as the case may be, unless the Minister gives his consent.Courts of Native CommissionersSection 7 empowers the State President to confer criminal jurisdiction on a NativeCommissioner to try offences committed by Africans within his area ofjurisdiction, with all the powers of and subject to the laws governing magistrates.Section 8 empowers the State President to constitute Native Commissioners'courts to hear a broad range of civil cases (including matrimonial matters)between Africans.Sections 9-16 deal with, inter alia, procedure in such courts, the application ofnative law, and the use of assessors. Section 15 provides that an advocate(barrister) or attorney (solicitor) admitted to practice before the South West AfricaDivision of the Supreme Court is entitled to appear in a case in a NativeCommissioner's court, provided that the court gives its consent, "which consentthe court may in its discretion withhold".

African marriages and inheritanceMost of Chapter IV, covering these subjects, has not cbme into effect, with theexception of a few provisions applied to the area north-of the former "PoliceZone."2/ Amended by Proclamation No. 25 of 1937, section 2, and Ordinance No. 4 of1955.3/ Section 3 (1).

Native Administration, 1928- 320Prooting hostility between Africans and whitesSection 20 (i) makes it an offence to say or to do anything with intent to promotehostility between Africans and whites.The penalty for violation of the subsection is up to one year in prison, a fine ofR200, or both; and a convicted person who committed the offence in an areareserved for persons of a different race may be ordered to stay out of that area fora specified period. _/Letters of exemptionSection 22 51 empowers the State President to issue letters of exemption toAfricans, exempting the recipients from some or all laws applying to Africansonly, except laws (i) governing land ownership or occupation, (ii) imposing taxes,and (iii) relating to intoxicating liquor. Such a letter may be subject to conditionsand may be withdrawn at any time. 6/General penalty provisionSection 23 (2) provides a fine of not more than R50 or, in default of paymentimprisonment for not more than three months for an offence for which no otherpenalty is specified.RegulationsSection 19 7/ empowers the Minister to make regulations (applying to all orcertain Africans only) concerning, inter alia, exhibition of undesirable pictures inreserves, locations or other African areas; carrying dangerous weapons;prohibition or control of public gatherings and assemblies in African areas;observance of decency; and other matters related to the control or welfare ofAfricans or to order and good government.Section 21 empowers him to issue regulations for the control and management ofany village or town not in an urban area if at least two-thirds of the residents areAfricans and for the imposition of rates and charges in such areas.These regulations may carry penalties for their contravention. 8/14/ Section 20 (1), (3)./ Amended by Proclamation No. 35 of 1943.Section 22.T/ Amended by Ordinance No. 11 of 1954, section 7.Section 23 (1).

- 321 -Native Administration Proclamation of 1928

Technical SunplementThe State President or the Minister of Bantu Administration and Developmentha5- been substituted for the Administrator in this Proclamation in accordancewith section 3 of the South West Africa Bantu Affairs Mlministration Act, No. 56of 1954, supplemented by Union Proclamation No. 119 of 1958.State President's powers over the chiefsAs originally drafted, the Proclamation granted powers over both chiefsand headmen to the territorial Administrator. When Act No. 56 of 1954transferred control of native affairs from the Administration to Pretoria, itsubstituted the Governor-General (now the State President) for the Administratorin the Proclamation. By proclamation issued soon thereafter (and subsequentlyreplaced by Union Proclamation 119 of 1958), the Governor-General delegatedmost of these powers to thd Minister of Bantu Administratioh and Development.However, he did not delegate his powers as to the chiefs under section 1 (a) and(b).Minister's powers in relation to the tribesThe Minister's powers to break up or amalgamate tribes and to move them fromone place to another reflect official South African politico-anthropologicalpremises: The various Atrican "nations" (often referred to as "tribes"). have suchstrong cultural identities and react to each other with such fierce inter-"national"hostility, that it is necessary to separate the "nations" from each other by assigningthem separate "homelands?State President as the Supreme ChiefIt would appear from a perusal of Proclamation 119 of 1958, that the Minister isthe Supreme Chief, since the 1958 Proclamation appears to include this provisionamong those as to which the State President delegates his powers and functions tothe Minister. However, despite the result of a strict reading of the 1958Proclamation, it appears doubtful that there was any intention to vest the powersand functions of Supreme Chief in a cabinet minister rather than the StatePresident. The State President is the Supreme Chief of tribes in the 1hpublie (bylegislative fiat, of course), and it seems that, by analogy, he should be theSupreme Chief in the Territory also.State President not answerable to the courtsAs in the case of State President as Supreme Chief, it is not clear whetherProclamation 119 of 1958 intended to delegate the immunity of theState Presidentto'the Minister of Bantu'Administration and Development. It see-& highlyunlikely, however, that a cabinet minister would be granted an all-encompasing

Native Administration, 1928, T.S.- 322immunity of the sort extended by section 2 ; in a partially Britishdescendedsystem it would be normal to grant such immunity to the closest equivalent to theCrown, i.e the Governor-General, now the State President.AdministrationThe evolution of the "separate developnent" theory and its implementation in theTerritory through the Development of Self-Government for Native Nations in

South-West Africa Act I/ and otherwise has led to various changes in theadministration of "native affairs." Government Notice No. R 1192 of 1971(Republic) 2/ defined the area in which the Chief Native Commissioner shouldexercise the powers conferred on him under this Proclamation as being "TheTerritory of South West Africa excluding Okavangoland ...; Ovamboland ...; andEastern Caprivi...." (Emphasis added.)Relations between chief and tribeA tribe is not liable for the personal obligations of its chief. 3/African marriages and inheritanceSection 27 of the Proclamation provided that the Proclamation should come intoeffect on a date to be fixed by the Administrator. Government Notice 165 of 1929provided that the entire Proclamation except Chapter IV, dealing with marriageand inheritance, should become effective on 1 January 1930.Subsequently, by G.N. 67 of 1954, sections 17 (6) and 18 (3) and (9)were put into effect in the territory north of the Police Zone as of 1 Aguust 1950.Those sections do not appear to apply to other parts of the Territory, and theremainder of Chapter IV appears not to apply anywhere in Namibia.Section 17 (6) provides that marriages between Africans which take place afterthe effective date of the section shall be deemed not to be in community ofproperty unless specific formalities are observed. Section 18 (3) provides thatquestions as to distribution or administration of an estate in accordance withnative law are to be decided by the Native Commissioner, or, if there is none inthe area, by the district magistrate; such decisions may be appealed to the SouthWest Africa Division of the Supreme Court. Section 18(9) empowers the Minister to make regulations concerning the administration ofestates.Promoting hostility between Africans and whitesSection 20 (2) provides that a magistrate may issue a warrant to the police tosearch any premises where there is evidence of such an offence or objectsintended to be used to commit such an offence; and the police may seize any suchevidence or objects. If the magistrate heaing the case finds that the things whichhave been seized 'may reasonably be qalculated" to produce hostility betweenAfricans and whites, he may order their destruction or confiscation to the state.1/ No. 54 of 1968. 2/ Published in the South West AfricaOfficial Gazette No. 3196, 15 July 1971. 3_/ Section 5 (1).

Native Administration , 1928, T.S.- 323If a person convicted under secton 20 is ordered to stay out of acertain area in accordance with section 20 (3), he shall be subject to the samepenalty for contravening such an order as for contravening section 20(i). 4/ Such person shall also be subject to removal from.the Territory. /RegulationsUnder the various provisions empowering the Minister to issue regulations,regulations have been issued as to, inter alia:- the duties, powers and privileges of chiefs and headmen (G.N. 60 of

1930, amended by U.P. 119 of 1958);- confiscation and destruction of written, printed or other materialwhich is objectionable or unsuitable for the "native mind" (G.N. 25of 1936);- control of the collection from natives of moneys for war funds (P. 11 of1941);- allowances for headmen (G.N. 86 of 1948, amended by G.N. 2h4 of 1953;subsequently covered by R. G.N. 2128 of 1967, amended 20 March1970); and- regulations for the financial protection of Africans (regulatiosdirected to companies and trading, co-operative, benefit orfriendly societies and associations receiving money from Africans)(G.N. 225 of 1954, substituted for G.N. 62 of 1936).14/ Section 20 (4).Section 20 (5).

- 324 -NATIVES (URBAN AREAS) PROCLAMATIONNo. 56 of 1951 (South-West Africa), as amendedGeneral. This Proclamation, which runs to 39 pages of English text, consolidated and.. repealed the Natives (Urban Areas) Proclamation (South-West Africa) of 19241/-:and three decades of amending and supplementary legislation.Many of its provisions are similar to those found in the Natives (Urban Areas)Consolidation Act of 1945. 2/ They regulate, inter alia, Africans' ingress into andresidence in urban areas; African employment in such areas; removal of Africansfrom such areas; and African possession and use of liquor in such areas.This Proclamation must be read with the Employment Bureaux Regulationsgoverning Africans. 3/Administration of the lawAs originally enacted, most powers were vested in the territorial Administrator.The Governor-General (now the State President) was substituted for theAdministrator by the South-West Africa B~ntu Affairs Administration Act of1954, 4/ when control over native reserves was transferred to the South Africangovernment. These powers of the Governor-General were in turn delegated to theMinister of Bantu Administration and Development. 5/"Urban area" definedSection 1 in effect defines an urban area as an area under the jurisdiction of amunicipal council or village management board or under the jurisdiction of amagistrate if the Minister declares the latter an urban area.An urban local authority is a municipal council, village management board or amagistrate with jurisdiction over a declared urban area.Local authoqities to supply accommodations for AfricansThe Proclamation empowers the Minister to order urban local authorities to

supply accommodations foi Africans in urban areas. He is empowered to supplysuch accommodations at the expense of the authorities if they fail to comply or ifthey request him to act for them. /Racial restrictions on acquisition of property in urban areasSection 7 prohibits any African from acquiring any real property in a nativevillage or location or in an area approved for African resider~ce or declaredpredominantly occupied by Africans. Sections 6 and 8 prohibil- persons otherthan Africans from acquiring any real property in a native village:pr location or inan area approved for African residence or declared predominantly occupied byAfricansI_/ Proclamation No. 34 of 1924 (South-West Africa). 2_/ Act No. 25 of 1945.3/ Employment Bureaux Regulations Proclamation, No. R. 323 of 1972 (q.v.),andEmployment Bureaux Regulations for Namas Proclamation, No. R. 32 of 1973(q.v.). 4/ Act No. 56 of 1954, section 3 (1), (2). I By (Union) Proclamation No.87 of 1955, replaced by Proclamation No. 119 of 1958See also Ordinance No. 4 of 1955, section 3. / Sections 3-5.

Natives (Urban Areas)- 325Segregationl or Africans in urban areasSection 9 (i) empowers the State President, if he deems it "expedient", to requireall Africans in an urban area to reside in a locttion. Thereafter it is an offence foran African to live elsewhere or for adyone to permit him to live outside a nativelocation. 7/ Africans in Windhoek were compelled to resettle in the Katutura"township" under this provision despite their bitter opposition to relocation.After such a requirement has gone into effect, no new school, church or recreationcentre for Africans may be established outside a location in the urban area; andthe Minister may require any school or recreation centre for Africans which hasalready been established outside a location to relocate and operate only within alocation. 8/Section 9 (7) forbids whites to live in native locations.Management of native locationsSections 14-16 set out in detail the powers of urban local authorities to establish,equip and maintain locations.Section 20 (1) provides for the establishment by the urban local authority of a"native advisory board" of at least three Africans in each location.Under section 21 (1) each urban local authority is required to appoint or assignone or more officers to manage its native locations. Every such officer must belicensed to undertake such functions, and his licence may be withdrawn at anytime by the Minister of Bantu Administration and Development. Subsection (3)empowers the Minister to appoint officials to inspect and search for "vagrant andidle" Africans in any location and to inquire into any matter affecting Africanwell-being and welfare. Obstruction of such an officer constitutes an offence. 9/An urban local authority may let sites for trading or business in a

location; may prohibit or regulate hawking or peddling in a location; and mayprohibit carrying on business or trade at any place other than a site rented for thatpurpose. Authorities are specifically empowered to differentiate between personsof different races and between different classes in regulating hawking andpeddling. 1_/Control of liquor in locationsSection 28 prohibits generally the introduction, possession, manufacture orbrewing of liquor in locations./ Section 9 (3), (4)./ Section 9 (5), (6).9/ Section 21 (6), added by Ordinance No. 25 of 1954, section 8. 1/ Section 31.

li.tives (Urban Areas)- 326Under section 29, 11/ however, the Minister may authorize an urban localauthority to manufacture, supply and sell "kaffir beer" (not ,xceeding 5% alcoholby volume) in a kaf fir beer hall under its control.Section 30 empowers the Minister to make it illegal to have or sell any form ofsprouted grain within five miles of an urban area.Revenues connected with locationsSection 17 provides for the establishment by each urban local authority of aNative Revenue Account composed of moneys derived from the administration ofmatters affecting Africans. The Account is to be treated as a trust fund for thebenefit or welfare of Africans residing within the jurisdiction of the urban localauthority.Restrictions on remaining in urban areasSection 10 (1) LJ prohibits an African from remaining in an urban area longerthan 72 hours unless he:(a) was born in and permanently resides there; or(b) has worked there continuously for 15 years, or for 10 years for thesame employer, without being convicted of any crime more serious thana minor pass offence; or(c) is the wife, unmarried daughter or minor son of an African qualifiedunder (a) or (b) and customarily resides with him; or(d) has been granted official permission to remain.A permit to remain for the purpose of working expires when the African leavesthe specified job; a permit to seek work expires after two weeks. 13It is unlawful to bring an African into an urban area without permission 14/ or toemploy an African in an urban area unless he is qualified to remain there undersection 10. DiAn African who is wrongfully in an urban area may be removed to his home orlast place of residence at his expense or at the expense of the person who broughthim into the urban area. 16/Llj Amended by Ordinance No. 25 of 1954, section 11; further amended byimplication by General Law Amendment Act No. 102 of 1967, section 22, q.v.12/ Substituted by Ordinance No. 25 of 1954, section 3. 13J Section 10 (2).

I Section 11, substituted by Ordinance No. 25 of 1954, s&ntion 5. U/ SectionlObis, added by Ordinance No. 25 of 1954, section 4. L6 Section 12, substitutedby Ordinance No. 25 of 195h, section 6.

Natives (Urban Areas)- 327Africans near urban areasSection 13 prohibits Africans, except bona fide elaployees and their families,from "congregating", and the owner or occupier of property from letting themcongregate, on property within five miles of an urban area. Contravention of thesection is an offence."Proclamaimed area"The State President may declare any urban area or other area where thereare large numbers of Africans for mining or industry to be a "proclaimed area."17/In such an area, inter alia, an employer must register all service contracts andterminations thereof; an African must have a permit to enter and work as a casuallabourer or independent contractor; unemployed Africans must report to officials,live in a prescribed area, and find work promptly, or be removed and urban localauthorities must provide and manage sufficient accommodations for Africans. 18/Removal of "redundant natives"If the State President declares that the number of Africans in an urban areaexceeds the reasonable labour requirements of the area, he can require the urbanlocal authority to provide him with a list of Africans who ought, in its opinion, tobe removed. He may then determine which ones shall be removed. 19/The urban local authority shall give a removal notice to the Africansdetermined to be redundant by the State President. If any such African and hisfamily fail to leave after notice, they may be removed under warrant. 20/"Idle or undesirable natives"Section 26 21/ empowers an authorized official to arrest without warrant anyAfrican in an urban or proclaimed area whom he believes to be "idle" or"undesirable" and to bring him before a magistrate or Native Commissioner, towhom the African must give "a good and satisfactory account of himself." If hefails to do so, he may be ordered removed from the area unless he agrees to enterinto an approved employment contract. 22/CurfewSection 27 empowers the State President, at the request of an urban localauthority, to declare a night-time curfew affecting every African who does notpossess a curfew pass signed by his employer. Violation of curfew is an offence.23/2d17/ Section 22 (1), amended by Ordinance No. 25 of 1954, section 9 (a), (b).-i/ Section 22 (1) (a) - (h) ((a) amended by Proclamation No. 168 of 1962(Republic)1 August 1962, and (e) amended by Ordinance No. 25 of 1954, section 9 (c)).'Aj_/ Section 25 (1).20/ Section 25 (2) - (8).

22!/ Substituted by Ordinance No. 25 of 1954, section 10. 22_/ Section.26,substituted by Ordinance No. 25 of 1954, section 10. 23/ Section 26 (6),substituted by Ordinance No. 25 of 1954, section 10.

Natives (Urban Areas)- 328RegulationsSection 32 (1) empowers the Minister of Bantu AdministrAion and Developmentto make regulations as to all matters covered by the Proclamation. Sub-sections(2) 2L4 and (3) list the subjects as to which an urban local authority may makeregulations.Power of the Minister to take actionSection 34 (1) gives the Minister general power to do himself anything that anurban local authority fails to do after being ordered to do so.?/ Paragraph (f) substituted by Union Proclamation No. 33 of 1960.

- 329 -Natives (Urban Areas) Proclamation (South-West Africa)Technical'suDDlement.t enralFor reasons explained in the introduction to the digest, it has been .impossible toobtain much of the territorial legislation enacted ddring the late 1960s.Consequently, this summary of the Proclamation probably omits a number ofrecent modifications. However, it seems safe to assume that no change has beenmade in the general approach of the Proclaiation; modifications have probablyfollowed changes in the Urban Areas Act, the general effect of which has been torestrict Africans even further.The Employment Bureaux Regulations Proclamations generally supplement andrefine provisions of the Urban Areas Proclamation, rather than repeal them; butwhen the Employment Bureaux Proclamations are inconsistent with provisions ofthis Proclamation, the more recent, of course, will prevail.Administration of the lawPower was originally vested in the Administrator to deal with Africans inurban areas since it had been so vested in him under the 1924 Proclamation,which the 1951 Proclamation consolidated and replaced. When the administrationof "native affairs" in the Territory was taken over by the then Ministry of NativeAffairs, the control over Africans in urban areas was also transferred to theMinister.Local authorities to supl- accomnodationsThe powers granted specifically to the Minister by sections 4 and 5 arecovered by the general terms of section 34 (1) (see "Power of the Minister to takeaction").Racial restrictions on acquisition of propertyThe prohibitions on individuals in sections 6-8 also apply to companies controlledby Africans or by non-Africans, as the case may be. The sections prohibit entering

into any agreement or transaction involving the acquisition of any land, right inland, any interest in land, or any servitude over it.Exceptions may be made by the Administrator or by the State President inthe case of an African seeking to acquire land in a white area, after consultation.Vith local authorities. An exception may also be made in favour of Coloured4.ersons "ordinarily resident" in African areas 1/ and of mortgages in such cases.2/S It is doubtful whether any such exceptions have been granted in recent years;it is more likely that existing exceptions have been revoked.Contravention of the prohibitions of any of these section; is an offence,punishable by a fine of up to R200. 3/1/ Section 7 (3).V_ Section 8 (2).3/ Sections 6 (2), 7 (2), 8 (3).

Natives (Urban Areas), T.S.- 330Segregation of AfricansSection 9 (2) exempts the following classes of Africans: bona fide domesticservants who sleep in; residents of mission houses, private hotels and othersimilar institutions as long as they have the approval of the state President-And the concurrence of the urban local authorities; residents Cf an area other1han a location which has been approved for African residence; and thoseexempted-by the local authority unless the exemption is cancelled by the Minister. DuringAhe last two decades these exemptions have been whittled down, in particular bycancellation of permits issued by local authorities and by the forced transferof missions and hostels to urban locations.An African may be required at any time to present proof of his exemption,and if he fails to present it, he shall be presumed, prima facie, not to be exempt.In any prosecution of the owner, occupier or person in charge of propertyfor unlawfully accommodating Africans on the property, he shall be deemed tohave willingly accommodated the Africans unless he proves that he did not knowthat they were accommodated there or that he could not by the exercise ofreasonablecare have prevented them from being so accommodated. 1./Section 38 provided for the continuation of native locations existing as ofthe effective date of the Proclamation, but many have since been abolished orrelocated.Manaement of locationsSection 19 deals with rents and fees due from Africans living in native locations.Subsection (2) provides that fees for water, lighting, sanitation, etc. shall notexceed the fees payable for such services in any other portion of an urban area.Subsection (3) provides in effect for garnishment of up to 25% of an African'swages for rent, fees and charges payable by the African. Subsection (5) providesthat a magistrate of the district where a native location is located may issue a

warrant of execution against the movable property of an African for rent, fees orcharges which he is satisfied that the African owes to the local authority. Sectiel32 (2) (p) empowers a local authority to issue regulations concerning penalties -including summary ejectment -- for failure to pay rent, fees or charges; it appear-sthat most authorities have taken advantage of that provision.A native advisory board shall have the function of considering and advising .oncertain proposed regulations as well as on matters referred to it or which it n-.wishes to report on. It may also make recommendations to local authorities. 5/-But white officials have no obligation to act on such advice or recommendations../ Section 9 (4), 2nd paragraph./ Section 20 (2).

Natives (Urban Areas), T.S.- 331Control of liquor in locationsKaffir beer may not be sold to African men under 18 years old or to Africanwomen unless it is sold to the women in a separate room; and in such case it maypat be sold to women under 21.Section 29 (5) provides that all expenditures incurred by the local authority Vconnexion with the manufacture and sale of kaffir beer shall be debited against,and all receipts from its sale shall be credited to, a kaffir beer account.The control of sprouted grain is designed to prevent the illegal brewing ofalcoholic beverages fro such grain.All provisions of this section are subject to modification by regulations issuedunder the General Law Amendment Act, 1967, section 22. 2/Revenues connected with locationsSection 17 (1) spells out in great detail the revenues which shall be paid into theNative Revenue Account: fines for violation of regulations or by-laws relating tonative locations; revenues from the sale of kaffir beer (to be credited to a sub-account called the kaffir beer account); rents from trading sites in locations andprofits from any business carried on by an authority in a location; and rents andfees from residents of locations.Section 17 (2) provides that the Account shall be charged with expenditures forthe following only: services rendered by the authority in respect of the location;and other services specified by law or by the Minister.Section 18 (1) provides that money derived from the registration of labourcontracts and from the issuance of licenses to casual labourers etogt boys")'is tobe paid into a special "Urban Areas Pass Fees Fund". / Subsection (2) providesthat on written approval of the State President, the money in the Fund may be paidover to local authorities for capital works and special services in locations oroutside locations if the works or services are controlled or maintained for thedirect benefit of Africans.Restrictions on remaining in urban areasis section follows'very closely the origiral version of section 10 in the SouthAfrican Urban Areas Act. The South African statute has since been amended to

make its provisions more rigorous, and related laws have also reduced the limitedrights granted by the section as first enacted.i. The effect of the section is to create a small elite of Africans who qualify ias ofright to stay in the urban areas and to transform all other Africans who "go to thecities - where all the (relatively) desirable jobs 4id the opportunities foradvancement are located - into a rightless, transient pro.4tariat, dependent enpermits. This is, of course, in line with separate develolpment theory, thatAfricans are citizens of the "homelands", where they have rigIts, and that theyshould only come into the "white area" (which includes all the urban centres) tosupply their labour as needed by the whites and then return to their homes.Section 29 (3)Act No. 102 of 1967.Subsection amended by Ordinance No. 21 of 1953, section 3, and Ordinance No.4Of 1955, schedule 1.

Natives (Urban Areas), T.S.- 332Africans near urban areasThe five mile limit may be extended to ten miles. _/In any criminal prosecution of the owner or occupier of ptoperty for.,llowing an African to occupy the property unlawfully, it is piesumed that the4frican is not the bona fide employee of the accused. LO/ !'Proclaimed area"The proclaimed area, in fact, comprises all urban centers and mining andindustrial complexes not in urban areas. The unproclaimed part of the Territory isentirely rural.In the proclaimed area, the urban local authority is required to see thatthe actions listed in the text of the digest are taken. However, section 22 (1)bisprovides that the State President may take over responsibility for the exercise ofany of the powers conferred by the section on the urban local authority.Subsection (2) grants exemptions from the provisions of subsection (I) tothe following Africans: approved chiefs and headmen; African minister ofreligion who are marriage officers; teachers at state aided educational institutions;members of a police force; members of any profession approved by the Ministerof Bantu Administration and Development; members of the South African Policeor Criminal Investigation Department; prison warders and employees of the courtsand other employees of the territorial Administration while in actual employment;and any African to whom a certificate of exemption has been granted by theMinister under the provisions of section 6(b) of the Native AdministrationProclamation of 1922. Such an African may be required to produce proof, ondemand, that he falls within one of the exempt classes.The section makes it an offence to forge, counterfeit, alter, defacei destroy ormutilate a document or certificate or to use one which belongs to another. 11/Removal of "redundant natives"This section follows very closely the original version of section 28 of the SouthAfrican Urban Areas Act, which had the same title when enacted.

Section 24 of the Proclamation requires an urban local authority, on demand, toprovide the Minister with statistical information as to all Africans in the area. Thesection authorizes officials appointed for that purpose to enter premises andobtain the necessary information.The procedure for giving notice of removal to Africans and their families isspelled out in considerable detail in subsection (2), which also indicates whereAfricans shall be removed to.91 Section 13 (2).10/ Section 13 (6).1-/ Section 22 (3), (4); section 23.

Natives (Urban Areas), T.S.- 333"Idle or undesirable natives"Section 26 follows very closely the original version of section 29 ("manner ofdealing with idle or undesirable natives") of the South Afiican Urban Areas Act.An "idle" African is defined in section 26 (1) (a) as one who:- is habitually unemployed and has no sufficient honest means of livelihood;- fails to support his dependents due to his own misconduct or default(including betting or gambling or addiction to drugs or drink); or- habitually begs or induces others to beg for him.An "undesirable" African is defined in section 26 (1) (b) as one who:- has been convicted of promoting hostility between whites and Africansor of any crime a third conviction for which renders the offender liableto be declared an habitual criminal;- has been convicted of unlawful possession or supplying of intoxicatingliquor other than kaffir beer or has been convicted of the same offencein relation to kaffir beer more than once in three years;- has been required to depart from a proclaimed area or, having beenrequired to depart therefrom, has refused to depart or has returned beforethe expiration of the period set therefore; or- being a female, has entered a proclaimed area without the required documents.If an African is ordered removed from an urban area as an idle or undesirableperson, his dependents may also be ordered to leave for the area. 12/ RegulationsSection 32 (4) provides that regulations issued by the urban local authority mustbe approved by the Minister of Bantu Administration and Development beforebeing promulgated.12/ Section 26 (7).

- 334 -OKAVANGO NATIVE TERRITORY AFFAIRS PROCLA4ATION No. 32 of1937 (South West Africa), as amended&This Proclamation is now largely superseded by the Nativ Nations Act I/-and proclamations issued under it 2/. Even the name "Okavango" has now been Saltered to "Kavango".

It set aside the Okavango Nitive Territory as a reserve and empowered theMinister of Bantu A&ministration and Development 3/ to govern it by regulation.h!Section 3 provided for the establishment of tribal trust funds. The relation of thesefunds to the South Africa Bantu Trust and to the new Kavango "government"created in 1973 5/ has varied as the political development of the Territoryevolved.Section 4 created an Okavango Native Territory Police.l/ Development of Self-Government for Native Nations in South-West AfricaAct, No. 54 of 1968, as amended (q.v.).2/ E.g., Kavango Constitution ProclamationqNo. R. 115 of 1973 (q.v.). .3/Mihister substituted for the Territorial Administrator by South-West Africa BantAffairs Administration Act, No. 56 of 1954, section 3, supplemented byUnion Proclamation No. 119 of 1958. ri4_/ Presumably these regulations remain in effect even after'the institution of"self-government" until specifically repealed. 5/ By proclamation, supra note 2.

- 335 -OVAMBOLAND AFFAIRS PROCLAMATIONNo. 27 of 1929 (South West Africa) as amendedThis proclamation is now largely superseded by the Native Nations Act I/ andproclamations issued under it. 2/It set aside Ovamboland (now officially "Owambo") as a reserve andempowered the Minister of Bantu Administration and Development 3/ to governit by regulation. 4/Section 3 provided for the establishment of tribal trust funds. The relationshipbetween these funds, the South African Bantu Trust Fund and the newgovernment created by the Owambo Constitution Proclamation of 1973 1/ hasvaried as the political structure of the Territory has evolved.1/ Development of Self-Government for Native Nations in South-West AfricaAct, No. 54 of 1968, as amended (q.v.).2/ E.g., Owambo Constitution Proclamation, No. R. 104 of 1973 (q.v.). /Minister substituted for the territorial Administrator by South West Africa BantuAffairs Administration Act, No. 56 of 1954, section 3, supplementby Union Proclamation No. 119 of 1958._/ Presumably these regulations remain in effect even after the institutionof "self-government" until specifically repealed. / Snura, note 2.

- 336 -OWAMBO CONSTITUTION PROCLA'ATIONNo. R. 104 of 1973* (Republic), as amended (Never legally in effect in ?Namibia)GeneralThis Proclamation is designed to transform Ovamboland (redesignated"Owambo" I/) Prom a "native nation" with a legislative council into a "self-governing" area and to Spell out how "self-government" shall function. It is

drafted in terms of the 1973 amendments to the Native Nations Act. 2/ Section 33(1) repeals Proclamation No. R. 291 of 1968, which establishedthe Ovanmboland Legislative Council, except for section 1, which created theCouncil, and section 17, which set out definitions.Leislative CouncilThe restructured Legislative Council has 35 members designated by seven tribalauthorities and 42 elected members, six of them from each "electoral division" 3/(i.e., tribal authority k/).The life of a legislative council is five years unless it is sooner dissolved by theState President, and it shall meet at least annually. It sits at Ongwediva, which isalso the seat of the government. 5/The Legislative Council is required to keep a record of its votes, Proceedings,enactments, etc. Its enactments are termed "Acts". 6/FranchiseAll Ovambos who are over 18 and hold registration or identity documents provingthem members of the "nation" are entitled to vote for members of the Council, 7/unless they are disqualified.The CabinetThe Cabinet consists of a Chief Minister and six other ministers. The ChiefMinister is elected by the Legislative Council by secret ballot, and he in turnnames the other ministers, selecting them so that the Cabinet represents all sevenelectoral districts. 8/Government Gazette No. 3876, 27 April 1973.By Proclamation No. R. 204 of 1972, Government Gazette No. 3636, 25 August197?.Development of Self-Government for Native Nations in South-West Africa Act,No. 54 of 1968, as amended./ Section 3, as amended by Proclamation No. H. 192 of 1974.See section 4. 5/ Sections 7 (i),li0 (1), (2), (3)./ Sections 30, 31, 32, 34. 7/ Section 5, amended by ProclamationNo. R. 14 of 1975.8/ Sections 13, 16.

Owabo Constitution- 337The Cabinet normally holds office throughout the life of the Legislative Counciland until selection of a successor Chief Minister. For "sound and cogent reasons"a Legislative Council may petitition the Stkte President to remove a ChiefMinister and order election of a successor; Vbe State President may grant orrefuse the request. For similar reasons a Chief Minister may petitition the StatePresident to remove any member of his Cabinet and toorder appointment of another minister in his stead. 9/The Chief Minister assignsresponsibility for the government departments to various ministers; allocatesdepartmental powers, duties, and functions; and may reorganize departments inthe interests of better administration. He presides at Cabinet meetings; butquestions are decided by majority vote. 10O

The Cabinet is empowered to appoint committees and may co-opt other membersof the Legislative Council as members. 1_/Chairman of the Legislative CouncilSection 25 provides for the selection of the Chairman and Deputy Chairman ofthe Legislative Council after the Chief Minister has been elected. They normallyserve for the term of the Council. 1_/Status of the ChiefsApparently in line with section 6B 13/ of the Native Nations Act, section 29 of theProclamation provides that Owambo chiefs "shall continue to enjoy the personalstatus ..; hitherto enjoyed" and that a chief shall take precedence over the ChiefMinister in ceremonial and tribal matters and at ceremonial occasions in his areaunless the matter or occasion is connected with the business of the LegislativeCouncil.Official languagesSection 31 recognizes Ndonga as the official tribal language.Votes, proceedings, and other basic documents and records are to be published inAfrikaans, English and Ndonga. 14/2/ Sections 17, 19, 20.1O/ Sections 23, 24.1J Section 24 (3).iJ Section 26.UJ/ Added by Act No. 20 of 1973, section 4 (1). LJ Section 32.

- 338 -Owambo Constitution ProclamationTechnical supplementLegislative Coun~ilAs originally written, section 3 provided for 35 appointed members and21 elected members. The number of elected members was doubled byProclamation No. 192 of 197, 1/ in a move which coincided with the dissolutionof the first Legislative Council. 2/ (The elections to the dissolved LegislativeCouncil had been successfully boycotted by 97% of the Ovambo in the summer of1973).Section 6 sets the qualifications for membership in the Council: A member mustbe mentally competent, a member of the Owambo nation, at least 26 years old,never convicted (unless subsequently pardoned) of specified serious political,common law or electoral offences, and not listed as a "communist" under theSuppression of Communism Act. /The procedure for elections to the Legislative Council is set out ingreat detail in the Owambo Election Proclamation, No. R. 105 of 1973. V_/Section9 of the Constitution Proclamation indicates a vacancy shall be filled during thelife of a Legislative Council.FranchiseThe registration or identity document required of voters is issued by

the Owambo authorities in accordance with the provisions of the Owambo NationRegistration Enactment, No. 5 of 1972. /The CabinetThe procedure for election of the Chief Minister is set out in some detail insections 14 and 15. Although the proclamation does not so state, it may beinferred that the Chief Minister and the other ministers must be members of theLegislative Council.Section 20 (2) - (4) indicates the procedure to be followed in connection with apetitition for removal of the Chief Minister. Subsection (5) deals with the case ofany other minister. Sections 21 and 22 deal with vacancies in the Cabinet.Chairman of the Legislative CouncilSections 27 and 28 deal with vacancies in the position of Chairman or DeputyChairman of the Legislative Council.j/ Government Gazette No. 431, 11 October 1971. ?2 By Proclamation No. R.193 of 197, Government Gazette 'o. 431, 11 ct. 19T4.No. 44 of 1950, q.v.Government Gazette, No. 3876, 27 April 1973.ITid., No. 3651, 15 September 1972.

- 339 -OWAMBO LEGISLATIVE COUNCIL PROCLAMATIONNo. R. 291 of 1968 (Republic), as amended(Never legally in effect in Namibia)This Proclamation was issued as the Ovamboland Legislative CouncilProclamation. "Owambo" was substituted throughout by Proclamation No. R. 204of 1972. 1/The Owambo Constitution Proclamation 2/ (q.v.) repealed the entire proclamationexcept section 1, which created the Legislative Council, and section 17, whichcontains defintiions._ Government Gazette No. 3636, 25 August 1972. 2_/ No. R. 104 of 1973,Government Gazette, No. 3876, 27 April 1973.

- 340 -PROHIBITED AREAS PROCLAMATIONNo. 26 of 1928 (South West Africa), as amendedGeneralThis Proclamation established the original boundary of the "Police Zone" (i.e., thesouthern portion of the territory reserved for white occupation) and provided foralterations in that boundary. It also restricted the right of persons to enter or resideanywhere north of the "Police Zone". These provisions are superseded by thepurported division of the Territory into "homelands", although the Proclamationremains in effect. The Proclamation also restricts activities in the game reservesalong the border of the "Police Zone".Boundary of the "Police Zone" definedSchedule I annexed to the Proclamation defined the northern boundary of thePolice Zone as of the effective date of the Proclamation.

Section 3 (2) 11 provided that the Administrator might from time to time amendthe schedule defining the boundary by notice in the Official (South West African)Gazette. The schedule was, in fact, repeatedly amended -always by moving the"Red Line" (boundary) further north, to expand the area available to whites at theexpense of the Africans living beyond the Police Zone.Restrictions on entry into area north of Police ZoneSection 2 which prohibited anyone other than a governmentemployee or an Ovambo from entering or residing in Ovamboland except underpermit, is now effectively superseded by the emergency regulations in effect inOvamboland. I/Section 3 (1) -/ similarly prohibits persons other than government officials fromentering or residing elsewhere north of the Police Zone. This section issuperseded in part by modern legislation.Restrictions as to game reservesSection 3 (1) (b) and (c) 2/ prohibits anyone other than a governmentofficial from entering or residing in Game Reserves Nos. 1, 2, 3. or 4 or the CapeCross Seal Reserve except under permit issued by the Secretary for South WestAfrica.I Amended by Ordinance No. 26 of 1957.2 Amended by Ordinance No. 4 of 1955.Regulations for the Administration of the District of Ovamboland ProclamatierNo. R. 17 of 1972 (q.v.).Amended by Ordinance No. 4 of 1955.Subsection (1 amended by Ordinance No. 4 of 1955; para. (c) added byOrdinance No. 26 of 1957.

Prohibited Areas- 341 -The game reserves were defined by the Second Schedule annexed Proclamation,and the Cap6 Cross Seal Reserve by a Third Schedule subsequently. 6/ Section 3(2) _/ provides that the Administiator from time to time amend the Second orThird Schedule by noti8A in Official Gazette.Section 3 (4)-C7) 8/ requires any person entering any of the gamereserves or the seal reserve in order to hunt, to pluck or gather plants or plantproducts, or otherwise to interfere with or disturb natural flora or fauna, to have,in addition to any permit required by territorial law, a special permit for theproposed activity issued by the Secretary for South West Africa.OffencesSection 4 makes it an offence to contravene any provision of this Proclamation orof a permit issued under it or to forge or fabricate a permit. Such offence ispunishable by a fine of not more than R200 or, in default of payment, byimprisonment with or without hard labour for a period of not more than sixmonths or by both fine and imprisonment.Added, by Ordinance No. 26 of 1957. Amended by Ordinance No. 26 of 1957.Amended by Ordinances Nos. 19 of 193T, section 1; 9 of and 11 of 1954, section8.

9 A1942, sections 1, 2;to the annexed maythe.

- 342 -Prohibited Areas ProclamationTechnical supplementGeneralSection 3 of the South-West Africa Bantu Affairs Admni3tiation Act,-;No. 56 of 19514, provides that the Secretary of Bantu Administr-ation andDevelopment is substituted for the Secretary for South West Africa insofar "ZasAfricans and native reserves are concerned. However, it would appear that as faras the game reserves are concerned, the Secretary for South West Africacontinued to issue permits.Boundary of the "Police Zone" definedSchedule I was repeatedly amended. Finally the entire Schedule was repealed andreplaced by G.N. No. 21 of 1957. That Schedule was then repealed and replacedby G.N. 222 of 1961.Restrictions as to game reservesThe boundaries of the game reserves have not been changed with the frequency ofthe boundary of the "Police Zone". But in the early 1970's an outcry was raised byproposals to incorporate parts of the Etosha Pan reserves in one of the new"homelands" created in the implementation of the Odendaal Plan.

- 343pROSPECTING AND MINING - NATIVE RESERVES, SUTH WEST AFRICAPROCLAMATION No. 42 of 1969 (Republic)*(Never legally in effect in Namibia)4This Proclamation supersedes, insofar as it is inconsistent therewith, theMines, Works, and Minerals Ordinance of 1968 1/ and all other laws as toprospecting for or mining base minerals in the territorial "homelands".Fermi ssion require.d_ tlo prsect Section 2 prohibits prospecting for base mineralsin a "homeland" withoutwritten permission from the Minister of Bantu Administration and Development.The licence fee is paid to the South Africa Bantu Trust. Pross ectin_ubjtct toconditions and restrictions Section 5 makes prospecting in any "homeland"subject to conditions and restrictions as to:- the location of prospecting operations in relation to cultivated areas,kraals, water courses and waterworks, etc.;- trespassing in African kraals and lands; - interferance with African interests; and- protection of open workings and restoration of abandoned areas.Under section 5 (d) all questions as to a prospector's rights to roads, wood, waterand grazing are to be settled by the Minister or an officer designated by him, with

"due regard" to African interests and to any conditions of a prospecting contractor other instrument relating to mineral rights. Effective dateSection 6 appears to make the Proclamation effective retroactively: It providesthat it does not apply to rights in existence as of 1 October 1968, some 4 1/2months before the Proclamation was issued; by implication it applies tosubsequent rights. .pi1ication to the Eastern Caprlvi ZipfelThe preambular paragraph states that the Proclamation applies to the EasternCaprivi Zipfel.Published in Government Gazette No. 2294, 14 March 1969. 1] Ordinance No. 20of 1968, q.v.

- 344 -ProspectinE and mining - Native Reserves. South West Africa ProclamationTechnical supplement-4eneral- It would appear that this Proclamation is inconsistent with the 1968 "b4iningOrdinance insofar as it vests licensing authority in the Minister of BantuAdministration and Development and lays down special conditions andrestrictions on the granting of licences.However, it seems that many of the provisions as to mining and as to thesettlement of disputes between the private landowner (i.e., the South AfricaBantu Trust or, in some cases, the "homeland" government) and prospectors andminers would apply. The reference in section 5 (d) as to a prospecting contract orother instrument relating to miners' rights may refer to an agreement forcompensation between the Trust and a prospector or miner.The authority of the State President to issue the proclamation derives from section14 of the Development of Self-Government for Native Nations in South-WestAfrica Act. V"Base minerals" are defined in the 1968 Ordinance; in the Proclamationthey exclude natural oil and source material as defined in the Ordinance.Permission required to prospectThe wording of section 2 makes it appear that Africans, as well aswhites or registered companies, must obtain permission to prospect, even in theirown "homelands".The South Africa Bantu Trust was established by section 8 of the" Bantu Trustand Land Act. ?/Section 4 requires every application for permission to prospect to be accompaniedby a deposit of not less than R1O0 as security for the restoration of the surface ofthe land by the prospector upon completion of his activities.1 Act No. 51 of 1968.2 Act No. 18 of 1936.

- 345 -REGULATIONS FOR THE ADMINISTRATION OF THE DISTRICT OFOVAMBOLAND PROCLAMATIONNo. R. 17 of 1972 (Republic), as amended

(Never legally in effect in Namibia)GeneralThis Proclamation establishes modified martial law in Ovamboland,inter alia, prohibiting meetings, restricting entrance into and departure from thedistrict, curtailing free speech, and permitting arrest and indefinite detentionwithout access to counsel. The Proclamation has many similarities toProclamation 400, which has applied to the Transkei since 1960.1/Application of the ProclamationRegulation 2 (1) provides that most of the regulations come intoeffect on publication. However, read with regulation 2 (2), it appears to providethat the regulations governing (i) entrance into Ovamboland,(ii) departure therefrom, and (iii) permits to enter or leave will be effective as toall or part of the district only on issuance of notice to that effect in the Gazette.The areas as to which such a notice applies are termed prohibited areas. 2/Although no such notice has been found in the Gazette, availableinformation indicates that entrance into and departure from Ovamboland are, infact, zontrolled as if those regulations had been applied to the area as a whole.Restrictions on meetingsRegulation 3 (1) makes all meetings unlawful unless they are authorized by aNative Commissioner or fall under the list of exceptions in (5), including, interalia, church services, kraal meetings on domestic matters, school sessions,sporting or cultural events, and official meetings of governmental bodies. Sub-regulations (2)-(4) provide for dispersal of unlawful meetings.Sub-regulation (6) authorizes a Native Commissioner to prohibit any person fromholding, being present at, addressing or presiding overany meeting.Entering prohibited areasRegulation 4 (1) makes it an offence for any non-resident of a prohibited area toenter or remain in such an area without a permit froi a Native Commissioner.* Government Gazette No. 3377, 4 February 1972. 1/ Proclamation No. 400 of1960 (Republic). 2/ Regulation 1.

Regulations - District of Ovamboland- 34 6A chief or headman may summarily, without warrant, arrest any person believedto be unlawfully in the area under his jurisdiction and have him_ rought before the Native Commissioner. 3/IDeparture from prohibited areasRegulation 6 (1) prohibits residents of prohibited areas from absenting themselvestherefrom without a permit from the Native Commissioner.PermitsRegulation 7 provides that a permit may be subject to such conditions as theNative Commissioner imposes and that every permit shall require that the holderreport his arrival or departure to a designated official and that he surrender thepermit to a specified official on its expiration. Failure to comply with anycondition is an offence.Restrictions on weapons

Regulation 10 requires all persons in prohibited areas to surrender all arms andammunition to the Native Commissioner. Sub-regulation (6) V_/ prohibits thepossession or use of any kind of dangerous weapon outside the owner's "erf"(land) or residence without a special permit.Subversive or intimidating statements or actionsRegulation 11 defines a broad and vague offence which includes, inter alia:(i) making any statement or committing any act intended or likely tohave the effect of subverting or interfering with authority or threateningboycott or "violence., loss, disadvantage or inconvenience" to anyone; or(ii) organizing or taking part in a boycott against any person or of ameeting convened by any public official; or(iii) refusing to obey a lawful order, including an order of a chief orheadman issued in accordance with native law and custom; or(iv) treating a chief or headman with "disrespect, contempt or ridicule".Prohibition against specific personsRegulation 13 (1) empowers the Minister of Bantu Administration and*Development, without prior notice, to-prohibit any person fro* entering, ?beingin, or leaving Ovamboland or any part thereof.__ Regulation 5 (). .Substituted by Proclamation No. R.26 of 1972, Gazette No. 3382, 14 April 19721

Regulations - District of Ovamboland- 347No staysRegulation 16 prohibits the issuance of any judicial process staying an order,decision, direction, etc., made or taken under the replations. It also prohibits a staypending appeal of a conviction under the regulations.PenaltiesRegulation 18 gives jurisdiction to magistrates' courts to try offences under theregulations and sets the maximum penalties as a fine of R600, imprisonment forthree years, or both.Regulation 12 grants jurisdiction to chiefs and headmen, to try and punish personsaccused of contravening certain listed provisions of the regulations. Thzy mayimpose fines of not more than R1O0 or four head of large stock or 20 head ofsmall stock, or, in default of payment, not more than three months' imprisonment.If a conviction is appealed and affirmed by the Native Commissioner, he mayincrease the penalty to the maximum sentence which may be imposed by amagistrate.Arrest and detentionRegulation 19 empowers any Native Commissioner or South African policeofficer to arrest anyone he believes to have committed or to intend to commit anoffence under the regulations or under any other law, as well as anyone hebelieves to have information about any such offence or intended offence. Suchperson may be detained and questioned until the Commissioner or officer "issatisfied that the said person has answered fully and truthfully all questions put tohim.... "

Regulation 20 prohibits a detained person from consulting with legal counsel as tohis arrest and detention.Indemnification of officialsRegulation 15 provides that officials acting in good faith under the regulations areimmune from civil suit or criminal prosecution for acts committed by them.Validation of earlier actsRegulation 22 validates all official acts done between 25 January 1972 and theeffective date of the regulations which could have been done under the regulationshad they been in force during that period.

- 348 -Regulations for the Administration of the District of Ovamboland ProclamationTechnical supplement"District" of Ovamboland definedReferences to the "district" of Ovamboland appear to mean the magisterial districtof Ovamboland, the boundaries of which were most recently redefined byGovernment Notice No. 1195 of 1970. 1/It seems that these boundaries coincide with the boundaries of theOvambo "homeland" as defined in section 2 (f) of the Native Nations Act. 2/Section 2 (f) of the Native Nations Act refers back 3/ to the definition of themagisterial district of Ovamboland in Proclamation No. 40 of 1920; but, byimplication at least, it would appear to be determined by that Proclamation's mostrecent amended form - i.e., as set out in Government Notice 1195 of 1970.It is not clear why the 1972 Proclamation did not refer simply to "Ovamboland",rather than to "the District of Ovamboland".The official usage now is "Owambo" rather than Ovamboland.Authority to issue the ProclamationThis Proclamation was issued by the State President "under and by virtue of thepowers vested in me by law", but the law was not specified. Reference in theregulations to the'Native Administration Proclamation No. 15 of 1928 suggests,however, that that Proclamation may be considered the source of his authority.Since the 1928 Proclamation was issued by the Governor-General, the legalpredecessor of the State President, the ultimr-.-, authority in a case must be thesource from which the Governor-General derived his power to issue the 1928Proclamation (q.v).Application of the ProclamationAlthough regulation 2 (1) provides that the regulations (subject to the exceptionsdiscussed under this rubric) came into effect on publication (i.e., 4 February1972), regulation 22, for all effects and purposes, sets the effective date as 25January 1972. (See "validation of earlier acts.")The exceptions referred to in regulation 2 (1), which apparently do not come intoeffect until applied by notice in the Gazette, cover entry into prohibited areas,departure from a prohibited area and certain procedural provisions. _/Government Gazette No. 2761, 31 July 1970.2- Development of Self-Government for Native Nations in South-West AfricaAct, No. 54 of 1958 (q.v).

3 Through a reference to regulation 1 of Proclamation No. 27 of 1929.Regulations 4-9, 10 (l)-(5).

Regulations - District of Ovamboland *.kS- 349Even if the regulati ns contained in Parts III and IV (entry into anddeparture from Ovafboland) had not been made effective, there are so many lawsalready on the books which regulate entry into and departure from the "northernterritory" that the South African police would appear to have Authority to regulatesuch traffic without recourse to the new regulations.Restrictions on neetingsMeetings which are authorized by written permit of the Native Commissionermust be held at the time and place specified, and they must conform to anyconditions set out in the permit.Even meetings which are authorized without permit under sub-regulation (5) maybe prohibited by a Native Commissioner, a South African police officer, or a chiefor headman. 5/It is unlawful to refuse to obey an order to disperse an unlawful meeting; 6/ tocontravene an order issued under the regulation; 7/ or to permit an unlawfulmeeting to be held in premises under one's control. 8/ Sub-regulation (8) creates apresumption that any meeting is unlawful unless the contrary is proved.Entering prohibited areasAn applicant may appeal to the "Director of Justice" (now the Minister of Justice)of Ovamboland from a refusal by a Native Commissioner to issue a permit toenter a prohibited area. The Director's decision is final. 9/Exceptions to the requirement of a permit are made for: public officials; travellersproceeding on an unbroken journey through the district by means of publictransport (excluding taxis or hired vehicles); and persons returning by publictransport (excluding taxi or hired vehicles) from work outside Ovamboland to adomicile within the district. 10/A person is deemed not to be a resident of a prohibited area under regulation4 (1), and therefore must-obtain a permit to enter-it, if he is absent therefrom dueto his work or occupation or if he does not habitually reside in such area eventhough he owns or occupies a kraal or habitation in the area or owes allegiance toa chief or headman in the area. 1_/Any adult knowing of or suspecting an illegal presence in a prohibited area mustreport it to his chief, headman or Native Commissioner; and a chief or headmanso apprised must report the information to the Thtive Commissioner. Failure tomake such a report is a criminal offence. 12/-/ Regulation 3 (5), proviso. 9/ Regulation 4 (1).?O/ Sub-iegulation (3). 10/ Regulation 4 (2),2 (6).T/ Sub-regulation (7). ii/ Regulation 4 (5).*Sub-regulation (7). 12/ Regulation 5 (W)-0).

Regulations - District of Ovamboland, T.S.- 350

Departure from prohibited areasA chief or headman may be authorized by a*Native Commissioner to issuepermits to leave a prohibited area. 13/Regulation 6 (2) lists-certain lists certain persons exempted from the permitrequirements: public officers, chiefs, or headmen travelling on official business;and any person travelling to or from a court which he is required to attend.Restrictions on weaponsSub-regulations10 (l)-(5), which deal with firearms and ammunition,.fall within the exception of Regulation 2 (1), in that they apply to all or part ofOvamboland only if they are specifically made applicable thereto by notice in theGazette. Sub-regulations (6) and (7), which cover all "dangerous weapons",became effective, in principle, when the Proclamation was published. However,as to the actual effective date, see Regulation 22 ("validation of earlier acts") andparagraph (c) of sub-regulation (6), 1/ which appears to authorize retroactivelyacts done under that substituted sub-regulation before or after 3 February.Even if sub-regulations M1)-5) have not been made applicable, substituted sub-regulation (6) includes firearms along with other dangerous weapons.The definition of "dangerous weapons" in the original sub-regulation (6) referredto the definition found in section 1 of the Dangerous Weapons Act of 1968. ]5Substituted sub-regulation (6) simply spells out that definition, viz., "any object ...likely to cause serious bodily injury if it were used to commit an assault", andomits the reference to the statute.PenaltiesRegulation 8 in effect places the burden of proof as to residence onthe defendant in any criminal prosecution relating to entry into or departure froma prohibited area.Regulation 9 provides for the forfeiture of any vehicle involved in aviolation of Regulation 4 (1) (entry into a prohibited area without a permit).The offences which chiefs and headmen are granted jurisdiction to trygenerally involve contraventions of orders issued by such chiefs and headmenunder authority of the Proclamation or failure to carry out duties owed to them.13/ Regulation 6 (1).Substituted by Proclamation No. R.26 of 1972. 1/ Act No. -T1of 1968.

Regulations - District of Ovamboland, T.S.- 351Assistanceb_ South African policeRegulation 1i authorizes the Sbuth African police to assist any NativeComissioner, chief or headman in carrying out his functions -under theProclamation. It may have been treated as warranting the police iii handing overpolitical dissidents to the Ovambo chiefs for public floggink. Arrest and detentionRegulation 19 (1) has marked similarities with section 6 of the Terrorism Act, 16/the provisions of which are even more rigorous.6/ No. 83 of 1967.

- 352 -

REHOBOTH AFFAIRS PROCLAMATIONNo. 31 of 192. (South West Africa), as amended9eneralThis proclamation nullified the basic provisions of the 1923 Agreement, l/.whichhad guaranteed significant self-government to the Rehoboth Gebiet, bysuspending the functions of the elected Kapitein and Volksraad and transferringtheir powers, functions and duties to the (white) district magistrate.In form this Proclamation did not explicitly amend the 1923 Agreement. It simplyenacted inconsistent provisions, which, being later in time -- and enforced bySouth African authority- abrogated the provisions of the Agreement.This entire 1924 proclamation was declared repealed by the Rehoboth GebietAffairs Ordinance of 1961, 2/ which stated that it restored the 1923 Agreement tofull force and effect. However, it appears that the 1961 Ordinance has neverbecome operative and that therefore this Proclamation remains in effect.This proclamation should b( read with the 1923 Agreement, Proclamation No. 9of 1928, and the 1961 Ordinance.Transfer of powersSection 1 of the Proclamation provided that the provisional Kapitein andVolksraad elected and recognized earlier in the year .2/ should cease functioningand that their powers, functions and duties should vest in the (white) magistrate ofthe Rehoboth District. (Later an Advisory Board was established to help themagistrate carry out his functions. _/Section 2 (1) transferred the jurisdiction and powers of judges and magistrates ofthe Gebiet to the district magistrate. Subsection (2) extended the jurisdiction ofthe district magistrate to offences involving whites. Subsection(4) provided for an appeal to the High Court of South West Africa (now the SouthWest Africa Division of the Supreme Court).Section 5 (1) vested all the official rights and privileges of the recognizedprovisional Kapitein and rand in the district magistrate and provided that all taxesand moneys payable to such officials were recoverable by the magistrate.Implementation of the ProclamationSections 3, 4 and 8 of the Proclamation contain provisions to ensure complianceith the obviously unpopular measures it forced upon the Community. Theyinclude_/ Agreement dated 17 August 1923 between the Administrator bf South WestAfricaand the Kapitein and Raad of the Rehoboth Community, ratified by ProclamatiOeNo. 28 of 1923 (q.v.).2_/ Ordinance No. 20 of 1961.j, By Proclamation No. 13 of 1924.By Proclamation No. 9 of 1928 q.v.

rehoboth Affairs- 353provisions: applying certain territorial laws relating to arrests, searches, andseizures, as veil as to resisting or obstructing lawful authority in the Gebiet;

transferring books, documents, etc., from the Gebiet officials to the districtmagistrate; and establishing penalties for usurping or attempting-to exercise the powers now assigned to the district magistrateSection 5 (2) provided that no legal proceedirg could be brought againstthe district magistrate, as successor to the provisional Kapitein And Volksraad.Financial provisionsSection 6 provided that any additional costs to the Administration resultingfrom its assumption of the administration of the Gebiet would be defrayed fromcornunity revenues.

- 354 -Rehoboth Affairs ProclamationTechnical supplementBackgroundProclamation No. 31 of 1924 was issued during a period of constitutionalupheaval in the mandate.Large segments of the indigenous people had challenged the South AfricanAdministration, whose rule seemed no better than that of the Imperial GermanGovernment which preceded it. The South Africans had in turn respondedruthlessly and effectively. They had subdued the Ovambo in the area north of the"Red Line," which the Germans had been content to recognize as thenorthern-most boundary of effective control. Then they put down an uprising ofthe Bondelswarts Nama by aerial bombing, to the outrage of the League ofNations.Nevertheless, discontent continued. When the Rehoboth Kapitein who hadsigned the 1923 Agreement died shortly thereafter, the Administrator recognizeda provisional Kapitein pro tem and an elected raad. V But dissention broke outbetween the officials, who favoured collaboration with the Administration, and agroup who wanted untrammeled self-government. The latter elected their owncommunity officials, with apparent majority support. The Administration issuedProclamation No. 31 and put it into effect against the will of the Community by ashow of military force.Relation to the 1923 AgreementAs indicated, Proclamation 31 does not specifically amend or repeal anyprovisions of the 1923 Agreement. It does not abolish the position of Kapitein orterminate the existence of Volksraad or Kapiteinsraad. However, by suspendingand transferring to the district magistrate the powers, functions and duties of theKapitein and the raads it effectively ended their existence.In form, the Proclamation several times employs the formula, "anything to thecontrary notwithstanding contained in the aforesaid agreement ...."Transfer of powersSection 2 (3) of the Proclamation required the court of the district magistrate tofollow local procedure in both civil and criminal cases, but that g/ requirementwas ended as to civil cases four years later.Section 9 of the Proclamation enlarged the jurisdiction of the district

magistrate to enable him to impose the maximum penalties which can be imposedfor contravention of the Proclamation.1 Proclamation No. 13 of 1924, May 1924. ?J Rehoboth Gebiet AffairsProclamation, No. 9 of 1928, section 4 (2), (3).

Rehoboth Affairs, T.S.- 355Financial provisionsNumerous subsequent laws added to or forgave part of 'the Gebiet's fiscalobligation arising out of the assumption of administrative burdens by the districtmagistrate as a representative of the territorial:Administration. See, e.g.Ordinance No. 27 of 1956, requiring the Gebiet to 'contribute "such amounts asthe Administrator may from time to time determine, towards the additional costimposed upon the Administration ... incidental to the administration of the Gebietin consequence of the transfer to the Magistrate of the powers, functions andduties of the Kapitein, Council of the Kapitein and Volksraad of the RehobothCommunity." A comparison may be made with the costs levied upon theTerritory for certain administrative services performed by the Republic (e.g..police, posts, etc.). In 1969, of course, the Republic took over many Namibiansources of territorial revenues to compensate itself for its extra burdens resultingfrom the legislative and administrative "rearrangements" mandated by the SouthWest Africa Affairs Act of 1969. 3_JSection 7 of the Proclamation regulates Gebiet accounts and the auditing thereof..3/ Act No. 25 of 1969.

- 356 -REHOBOTH GEBIET AFFAIRS PROCLAMATIONNo. 9 of 1928 (South West Africa), as amendedGeneralThis Proclamation is the third document in the series of mar laws / whichsuccessively established and altered the government of the Rehoboth Gebiet afterSoieth Africa assumed the mandate for South West Africa. It modified theadministration of.he Rehoboth Gebiet, as established in 1923 and revamped in1924, by providing th*L members of the Gebiet might exercise advisory functionsas to legislation and become assessors associated with the district magistrate incertain JIdicial proceedings.Although this Proclamation did not in form amend earlier legislation, in substanceit modified the Rehoboth Affairs Proclamation of 1924, 2/ which had transferredthe powers, functions and duties of the Kapitein and raad to the districtmagistrate.In theory sections 2, 3, 4, and 8 of this Proclamation were repealed by OrdinanceNo. 20 of 1961. That Ordinance was intended to re-establish in full force andeffect the 1923 Agreement as it was before being gutted by the 1924Proclamation. However, Ordinance 20 appears never to have become operative.Therefore, sections 2-4 and 8 remain in effect.Advisory Board

Section 2 (1) established an Advisory Board for the Gebiet to advise the districtmagistrate as to the exercise of his legislative, executive and administrativepowers. Originally composed of fairly senior male members of the Community,half of whom were appointed and the other half elected, it subsequently becamean all-elected body. 3/Assessors in certain judicial proceedlngisSection 3 provided for the appointment of Community members to sit as assessorswith the district magistrate in both criminal and civil cases in which both partieswere members of the Gebiet.Right of entry into the GebietSection 5 established certain exceptions to the restrictions found in the 1923Agreement on the right of non-members to enter the Gebiet. In addition toofficials and persons doing business with them, the section added an exception for"any /white/ person bona fide searching for stock suspected to have strayed orbeen stolen...."AAcquisition of interests in real proDerty in the Gebiet- Section 6 (2) provided that no one other than a member of the Community coldobtain any interest in immovable property in the Gebiet excppt with1/ Viz., Agreement dated 17 August 1923 concluded between the AdministratorofSouth West Africa and the Kapitein and Raad of the Rehoboth Community andratifiedby Proclamation No. 28 of 1923; Proclamation No. 31 of 1924. 2/ ProclamationNo. 31 of 1924.3/ Section 2 (2) (amended by Proclamation No. 5 of 1935, section 2 (1), andProclamation No. 21 of 1964), (3) (amended by Proclamation No. 18 of 1946).

Rehoboth Gebiet Affairs- 357permission of the Administrator. Proclamation 29 of 1929, section 2,subsequently modified this provision to make sure that interests in immovableproperty held by whites as of the date of the 1929 Proclamation should not beaffected by any earlier laws. The relevant provisions of the Rehoboth Investmentand Development Corporation Act V_/ now appear to be controlling as to thissubject.Removal of undesirables from the GebietSection 7 empowered the Administrator to direct the magistrate toissue a warrant for removal from the Gebiet of (a) any person "who theAdministrator is satisfied is dangerous to the peace, order or good government ofthe Gebiet .... ." or (b) anyone not a member of the Gebiet who had beenconvicted of an offence under circumstances which, the Administrator consideredmade him undesirable. Entering the Gebiet after being removed under this sectionconstitutes an offence.Sale of liquor or arms to whites in the Gebiet

Section 9 prohibited the possession of liquor by, or its sale to, whites within theGebiet except under permit. Section 22 of the General Law Amendment Act of1967 5/ now governs this subject.Section 10 prohibited supplying arms or ammunition to a white in the Gebietexcept under permit.Boundaries of the GebietSection 14 amended the boundaries of the Gebiet. It was subsequently repealed byProclamation No. 22 of 1911. A number of changes were made thereafter, mostrecently in the course of implementing the Odendaal Plan._/ Act No. 84 of 1969 (q.v.).../ Act No. 102 of 1967.

- 358 -Rehoboth Gebiet Affairs ProclamationTechnical supplementGeneralThis Proclamation should be read with the legislation cited in footnote 1 andOrdinance No. 20 of 1961. Its history is set out in the technical supplements tothose laws. Advisory BoardSection 2 (1) - (14) 1/ details election procedure, qualifications anddisqualifications of candidates, etc. There were six members of the Board when itwas created, half appointed and half elected, but the number was increased toseven when all members were to be elected. AssessorsThe High Court of South West Africa (now the South West Africa the SupremeCourt) was given original jurisdiction over civil cases whites and Basters orAfricans if the defendant was resident in theDivision of between Gebiet2j/Acquisition of interests in real property in the GebietThe Agreement prohibited acquisition of any interest (either leasehold orfreehold) in real property in the Gebiet to all non-members of the Communityexcept the Railway Administration.Sale of Liquor or arms to whites in the GebietDespite the prohibitions in sections 9 and 10 on the sale of liquor or arms towhites, or their possession by whites, the sections suggested that-it was easy for awhite to obtain an exemption or a permit in relation to either,Contravention of sections 9 or 10 was made punishable by a fine of notmore than R200 or imprisonment, with or without hard labour, for not more thansix months. 3/As amended and renumbered by Proclamation No. 5 of 1935, section 2, andfurther amended by Proclamation No. 16 of 1938. Proclamation No. 1 of 1937,section 5. Sections 9, 10, 12, 13.

- 359 -RULES OF PROCEDURE FOR THE EASTERN CAPRIVI LEGISLATIVECOUINCIL PROCLAMATIONNo. F. 7 of 1972 (Republic)

(Never legally in effect in Namibia);GeneralThis Proclamation supplements the Eastern Caprivi Legislative CouncilProclamation I/ by setting out in great detail the procedure to be followed by thenewly created Legislative Council.Virtually identical rules of procedure have been promulgated for all the "nativenations" which have Legislative Councils.Much, t hfe prpcedre set;outin this Proclamation would be found in therules of procedure adopted by a legislature for its own guidance in an independentstate. Indeed, the last rule (109) provides that in any case not covered by theserules, the chairman shall look to the Standing Orders and Practice of the SouthAfrican House of Assembly "in so far as they can be applied or adapted to theproceedings of the Legislative Council."The rules cover, inter alia, sessions of the Legislative Council; election ofchairman and deputy chairman; opening of sessioni other proceedings; rules ofdebate; records; sittings and adjournments; quorum; motions; questions; methodof voting; financial measures; and sessional and select committees. The digestmerely points up a few interesting provisions.Oath of OfficeNew members of the Legislative (buncil are required to take an oath to be loyal tothe Legislative Council, the Executive Council, and the Government of theRepublic of South Africa. 2/Forbidden referencesRule 36 (1) forbids reference to or reflections on the conduct of major publicofficials of the Republic. Subrule (2) forbids treasonable or seditious languageor the "irreverent" use of the name of the State President.Rule 67 (a) and the annexure to the Rules provide the exact words of theprayers by which the Legislative Council is required to open each day that it sits.1/ No. R. 6 of 1972.V_ Rule 10 (e).

- 360 -UNDESIRABLES PM4OVAL PROCLA4ATIONNo. 50 of 1920 (South West Africa), as amendedGeneralThis proclamation empowers the Administrator of the Territory to expel personsdeemed undesirable. It was most recently amended on 25 February 1972 andemployed immediately thereafter to expel Anglican Bishop Winter and three ofhis diocesan workers.Persons subject to expulsionSection 1 (1) empowers the Administrator to direct the Secretary for the Territoryto issue a removal order to any person in the Territory who, the Administrator issatisfied:is "dangerous to the peace, order or good goyernment of the territory"; I/ *Ihas inflicted on anyone, or threatened anyone with, "harm, hurt or loss"to his person, property, feelings, or reputation; 2/ or

has disadvantaged or threatened to disadvantage anyone to compel him to4do or to refrain from doing, or to penalize him for doing or refrainingfrom doing, anything which he is by law free to refrain from doing orto do, as the case may be. 3/Effect of a removal orderAny person who nas been served with a removal order and remains in theTerritory after the date set for his removal may be "forthwith removed from theTerritory" by warrant of the territorial Secretary. /Unauthorized return to the Territory by a person who has been so removedconstitutes an offence punishable by a year in prison (followed by removal fro3the Territory). 5/Subsection 1 (3) 6/ provides that directions of the Administrator andorders or warrants of the territorial Secretary issued under this Proclamatiencannot be reviewed by the courts.i_/ Subsection 1 (a), substituted by Proclamation 51 of 1937, section 7 (1) (a)amended by Proclamation 15 of 1945._/ Subsection 1 (b) in part, substituted by Proclamation 5. of 1937, sectiON7 (1) (b).3 Ibid.Subsection 1 (1), last paragraph, substituted by Ordinance No. 2 of 1972.Ibid.Subsection 1 (3), suostituted by Proclamation 51 of 1937, section 7 (2).

- 361 -UfdgeA.b es Removal ProcdamatioiTechnical supplementGeneralThis Proclamation was issued at the close of the First World War to facilitate!%he removal of hostile German residents whose sympathies with the defeatedGerman Reich were considered dangerous to the new South Africanadministration. It was amended in the late thirties when many of the Germanswho remained in the Territory took part in pro-Nazi activities.Persons subject to expulsionAs originally issued, this Proclamation empowered the Administrator to haveremoved persons who (a) were, in his opinion, dangerous to peace, order or goodgovernment or (b) had been convicted of certain offences listed in a sbheduleattached to the Proclamation. The schedule, which included most Common Lawfelonies and a few other crimes, was deleted by the Immigrants RegulationAmendment Proclamation of 1927, lJ which also removed item (b).Ten years later Proclamation No. 51 of 1937 added a new item (b) and twoother grounds for removal of persons from the Territory. The two latter involved,in effect if not in form, engaging in pro-Nazi activities. It would appear that,although not repealed, they are now obsolete.The new (b) added by Proclamation No. 51 of 1937 is very similar in itswording to traditional anti-strike, anti-boycott, or anti-blacklisting legislation, andit is probable that it was added to make possible the removal of union organizers.

One analysis of the paragraph has suggested that it would justify the removal ofany or all of the following:a minister who publicly chides parishioners for failure to attend church; ora worker who disparages a fellow worker for accepting a labour contract atlow pay-or for failing to join in a peaceful petition to the authorities; oran American at Tsumeb who threatens to decrease his wife's clothing allowanceon account of her extravagance.1.1 Proclamation No. 30 of 1927 (South West Africa), section 21.

Undesirables Removal, T.S.- 362Effect of a removal orderIn its original form, the last paragraph of section 1 (1) made thecontinued presence in the Territory of a person who had been served with aremoval order an offence penalized by a year in prison; but thore was noprovision for immediate removal, by force if necessa4y of the' person servediupon his or her receipt of such an order.It would appear, therefore, that the purpose of the 1972 amendment was to ensurethat Bishop Winter and his assistants would not be physically present in theTerritory when the Secretary-General of the United Nations arrived in Windhoek,in connection with Security Council resolution 309 of 1972.The wording of the last paragraph, as substituted by Ordinance No. 2 of 1972, isambiguous insofar as it makes the unauthorized return to the Territory by a personwho has been "so removed" constitute a penal offence. Strict rules of grammaticalconstruction would appear to make "so removed" refer only to persons who areremoved "by warrant under the hand of the Secretary for the Territory" (i.e., byforce) and not to persons, such as Bishop Winter, who leave the Territory"voluntarily" upon receipt of a removal order, without being expelled by force.. Itis, however, doubtful if that reading was intendedby the drafters of the amendment.Jurisdiction of courtsSubsection 1 (2) bestows extraordinary jurisdiction on magistrates' courts toimpose the maximum penalty provided by the Proclamation.Subsection 1 (3) denies the courts jurisdiction to review directions, orders orwarrants issued under the Proclamation. It would appear that it was on the basis ofthis subsection that the local court refused to grant Bishop Winter and hisassistants any relief against the orders for their removal. In appealing from thedenial of relief, they have argued that the powers granted by the amendingordinance exceeded those available to the territorial Legislative Assembly in thelight of the Supreme Court Act of 1959 / -as well as powers permitted underexisting immigration legislation.Prohibited immigrantsSection 2 3/ provides that a person ordered to leave the Territory underthe Proclamation becomes a "prohibited immigrant" in terms of the ImmigrantsRegulation Proclamation of 192 !L/. However, that Proclamation was repealed bysection 6 of the Immigrants Regulation Amendment Act of 1953, 5/ and there is

therefore a serious question whether the whole provision as to prohibitedimmigrantshas not been repealed by implication. APPlication of the Proclamation to BantuTrust lands and to AfricansSection 3 (1) (a) of the South West Africa Native Affairs MlministrationOrdinance of 1955 6/ provides that insofar as the Proclamation apgies to lands2 Act No. 59 of 1959. 3 Amended by Proclamtion No. 51 of 1937, section 7(31Proclamation No. 23 of 19J2.Act No. 43 of 1953.Ordinance No. 4 of 1955.

Undesirables Removal, T.S.- 363in effect, to "homelands"), it shall be administered by the Minister of BantuAdministration and Development; references to the Administrator or the Secretaryfor the Territory are to be construed as references to the Minister or the Secretaryfor Bantu Administration and Development or to an official authorized to act forthe Minister or the Secretary, as the-case may be.Section 3 (1) (b) of the same Ordinance provides that the Proclamation shall beadministered as to Africans by the Minister of Bantu Administration andDevelopment, instead of by the Administrator; references to the Administrator orthe Secretary of the Territory are to be construed as references to the Minister orSecretary for Bantu Administration and Development, as the case may be, or to anofficial authorized to act for them.

- 364 -VAGRANCY PROCLAMATIONNo. 25.of 1920 (South West Africa), as amendedGeneralThis Proclamation is designed to "suppress trespass, idleness and vagrancy" bypunishing transpassers and persons who are "idle and disorderly," by removingcertain squatters, and by investigating persons who are apparently involved instock thefts.Idle and disorderly personsThe Proclamation in effect defines the offence of being an idle and disorderlyperson as being a person who:- is "found wandering abroad and having no lawful means, or insufficientmeans of support" and who cannot give a "good and satisfactory accountof himself" to a magistrate; l/- is found wandering over any farm or on a road crossing a farm or in orloitering near any house, shop, stable, kraal, garden, etc.; 2/- resists an order under section 12 to leave an area where he is trespassing; 3/ or- is in any public place without sufficient clothing to be decent. V-/The penalty therefor is a fine of not more than R200 or imprisonment with orwithout hard labour, spare diet, and solitary confinement for no longer than 12

months. /. For a first offence a convicted person may be offered the alternative oftaking a job on public works or for the municipality or a private employer for aperiod not exceeding that for which he might be imprisoned. 6Harbouring an idle and disorderly personA person who knowingly harbours or permits an idle and disorderly person toreside on his land or premises commits an offence punishable by a fine of Rl0 or,in default thereof, imprisonment for not longer than two months. 7/Procedure as to idle and disorderly personsAny magistrate or police officer or anyone who finds a person declared to be idleand disorderly on his property may take such person to the nearest magistrate. Theowner of a farm may enter any hut, house, or building on his farm without awarrant to search for idle and disorderly persons and may1 Section 1. 2/ Section 3 (1), (23/ Section 12. _/ Section 13.5/ Sections 1 (amended by Proclamation No. 32 of 1927), 3 tamended byProclamationNo. 32 of 1927).6/ Section 14 (amended by Proclamation No. 32 of 1927). V/ Section 2.

vagrancy Proclamation- 365apprehend any such persons without a warrant. A magistrate may issue a generalwarrant, on written information, to search any promises for idle and disorderly'persons who, if found, shall be promptly apprehended. 8/TrespassSection 4 prohibits trespassing in an enclosed camp, kraal, or land. Section5 prohibits visiting employees of the owner or occupier of land without hispermission if he has given notice that permission is required.Investigation of a person driving stockSection 10 empowers a magistrate, police officer, superintendent of anative location, or the owner or occupier of property on which a person drivingstock may be found to stop such person and interrogate him concerning hispossession of the stock. If he fails to give a satisfactory explanation, or if there aregrounds for believing the stock to be criminally procured, such person may beheld in the nearest prison or police station until the facts concerning the stock aredetermined.Resisting authorityResisting arrest or a lawful search under this Proclamation is an offence. 2/Removal of scuattersUnder section 12 a magistrate may direct the summary removal of squatterstrespassing on waste crown land, on land occupied by a mission, or in a nativelocation.Maliciously causing arrestSection 15 makes it an offence maliciously and without probable cause to arrestor cause the arrest of any persons under the Proclamation. The penalty is a fine ofup to R10, plus damages of not more than R10 to the arrested person, or, in

default of payment, imprisonment with or without hard labour for up to threemonths.Sections 8, 9.. Section 11.

- 366 -Vagrancy ProclamationTechnical supplementGeneralThis Proclamation was issued in a period of great disorder following the end ofthe First World War when Africans were drifting back to the grazing lands fromwhich they had been ejected by the Germans, who had also, in many cases,deprived them of their cattle. En route to the lands which the South Africansultimately refused to restore to them, Africans frequently scrounged a living byquestionable means being unwilling to be tied down to work away from theirultimate destinations, particularly in view of the low wages offered in comparisonwith war-inflated prices. The Proclamation was intended to get the Africans offthe roads and out of land to which they had no title and into the many jobs whichlacked labour.Idle and disorderly personsThe concept of "idle and disorderly person" appears to be in some part aforerunner of the concept of "idle or undesirable" persons found in urban areaslegislation subsequently enacted in both the Republic and the Territory.The owner's permission is a good defence to a charge of being idle anddisorderly by reason of being found on or loitering near a farm, but the -accusedhas the burden of proving that he ieceived such permission.Insofar as the alternative of taking a job rather than undergoing imprisonment isconcerned, section 14, as amended, provides that the convicted person may not beemployed by the magistrate, any court official, or by the person at whose instancethe convict was arrested.Removal of squattersA magistrate is required to grant a hearing to squatters accused of trespassingbefore issuing a removal order. Trespass is defined in this context as enteringproperty without lawful authority.

- 367-PART IIIAppendix IFINANCIAL REARRANGEYENTS EFFECTED BYTHE SOUTH-WEST AFRICA AFFAIRS ACT, No. 25 of 1969, ANDTHEIR..CONSEQUENCESSection 14 of the South-W:est Africa Affairs Act of 1969 purports to amend the1968 South-West Africa Constitution Act l/ by returning to Parliament from theterritorial Legislative Assembly power to legislate concerning some 25 categoriesof activities - in effect, virtually all those not traditionally deemed "local" incharacter. Section 19 purports to restore the adLinistration of the same activitiesto the appropriate ministers in Pretoria.

The functions transferred to the South African Government by the SouthWestAfrica Affairs Act are referred to as "scheduled" matters 2/ because they are listedin a schedule annexed to the Act. Functions not transferred under this"rearrangement" are referred to as "non-sqheduled" matters.A significant and inevitable consequence of the transfer of government functionsunder the 1969 Act was a major alteration in fiscal relationships between SouthAfrica and its former Mandate: By such transfer South Africa implicitly madeitself liable for the costs of administering the scheduled matters and also becomeentitled to the revenues therefrom.If each governmental activity yielded revenues sufficient to cover thecost of administration of such activity, the transfer of governmental functionsfrom the Territory to the Republic would, in so far as financial relationships areconcerned, have occasioned a mere accounting problem of allocating revenuesand expenditures during the transition period. 3/ However, this was not the casein Namibia.Consequently, upon approval of the "rearrangements" proposed in the OdendaalReport of 1964, 1_/ the South African Government was forced to examine theentire financial structure of Namibia and to decide what changes should be madein the financial relations between the two governments in order to compensate forthe fiscal effects of the anticipated legislative and administrative transfers. Acommittee of experts, headed by the Deputy Minister of South West AfricaAffairs, was appointed at the end of 1964 to enquire into "the practical problemsto be taken into account ... Las to new financial and administrative arrangementsbetween the Republic and South West Africa."1/ Act No. 39 of 1968.The schedule actually contains, in addition to the list of.matters transferred to thejurisdiction of the South African Government by the 1969 Act, all powersaffecting Namibia hitherto vested in Pretoria, Such "reserved"powers were established in the South-West Africa Constittion Act of 1925,No. 42 of 1925, and, with some modifications, have existed ever since.3/ Plus certain minor, if sticky, problems as to pensions, Snemploymentcompensation for territorial employees not retained by the corresponding SouthAfrican ministry, adjustment of local subsidies, etc./ Report of the Commission of Enquiry into South West Africa Affairs, 1962-1963*/R.P.No. 12/19647

- 368 -The committee's report was completed in 1966, and the Govermnent-subsequentlyissued a White Paper announcing its decisions on the recommendations made bythe committee. I/ Section 22 of the 1969 South-West Africa Affairs Act, whichestablishes the'basic financial relationship between the South African Governmentand the territorial Administration, must be read in the light of the relevant''paragraphs (6-46) of the White Paper.Anal sis of Section 22General

Section 22 is divided into six sub-sections of which the first two, but particularlysub-section (2), contain the basic substantive provisions. The last four supplementor explain in greater detail terms used in sub-sections(1) and (2).Sub-section (1) provides for the establishment of a SOUTH-WEST AFRICAACCOUNT in the (South African) Consolidated Revenue Fund. This ACCOUNTis presumably a book-keeping device, not a trust fund. 6/ The sub-section assignsto the ACCOUNT those revenues which are, in effect, derived from the Territory,plus moneys appropriated to the ACCOUNT by Parliament. (See Annex I fordetails as to sub-sections (1) and (2) and Annex II for the mathematical derivationof the formula found in sub-section (2) (b).)Sub-section (2) lists the revenues payable directly to the (South West Africa)REVENUE FUND VJ. They consist of: (i) revenues collected by theAdministration from non-scheduled matters (item a); (ii) the Territory's share oftaxes collected by the Republic on the income of companies from sources (otherthan mining) in the Territory (item c); and (iii) the Territory's share of SouthAfrica's revenues from scheduled matters (item b)).Item (c)Provincial administrations, as well as the territorial Administration, are entitled toa share of the income taxes levied on and collected from companies by theRepublic. The percentage which is returned by the Suth African Government isdetermined annually in the current tax legislation, and is apparently intended to bethe same for the Territory as for the provinces. 8/5/ Memorandum: Decisions by the Government on the Financial andAdministrativeRelations between the Republic and South West Africa /White Paper TN-68(hereinafter cited as'hite Paper").6/ In general, trust funds are limited to moneys owed, as a matter of law, tospecified or determinable persons (as moneys for pensions or related socialbenefits for employees and/or their dependents). Othej revenues normallyare not earmarked either as to source or as to purpose.p-i Crediting moneysto the South-West Africa Account should, therefore, sere simply as a meansof determining the amount of income and outgo from Namibian sources andfor territorial purposes.7/ This is the territorial analogue of the South African Consolidated RevenueFund 8/ White Paper, para. 8 (a)(ii); but see infra, pages 372-73, comments onitem (S)

- 369 -Item _(b)Item (b), an annually determined sum chargeable against the SOUTH WESTAFRICAN ACCOUNT, represents a share of South African revenues fromscheduled matters which the Republic allocates to the Adminietration. Theamount is determined by the formula,a - b (a - b)xd, ory= xd

c + a- b c + (a-b)where: y = the Territory's share of revenues from scheduled matters;a = average annual expenditures (5 years preceding "rearrangement")on non-scheduled matters;b = average annual revenues (5 years preceding "rearrangement?)on non-scheduled matters;c = average annual expenditures (5 years preceding "rearrangement")on scheduled matters;d = current revenues from scheduled matters; and(a - b) = average annual deficit (5 years preceding "rearrangement") in respect ofnon-scheduled matters.(This formula is explained in Annex II, in which the mathematical derivation isset forth in detail).The purpose of this allocation is to compensate the Territory for net revenues lostby reason of the transfer of scheduled matters from Windhoek to Pretoria.Analysis of territorial budgets during the 1960s shows that prior to1969 such budgets were generally in balance (if special expenditures occasionedby implementation of the Odendaal Plan are disregarded), 2/ During that periodrevenues from (presently) non-scheduled matters did not cover the expenditureswhich such matters entailed, but revenues from (presently) scheduled mattersexceeded the expenditures attributed to them. 10/Since at that time the territorialAdministration collected revenues from both scheduled 11/ and non-scheduledmatters and paid the costs of administering them, the deficit arising out of thelatter was balanced by the extra revenue from the former.This internal fiscal balance was terminated by the legislative andadministrative rearrangements of 1969, which had the effect of transferring theexcess-revenue-producing scheduled matters to the Republic while leaving thedeficit-ridden non-scheduled matters to the territorial Administration.2/ Report of the Ad Hoc Committee for South West Africa, T Xpril 1967(A/6640,paragraphs 115-123).11J Ibid.11/ Except scheduled matters which were already under Pretoria's 3urisdiction,such as "native affairs", as to which see South-West Africa Bantu AffairsAdministration Act, No. 56 of 1954, section 3.

- 370 -A primary purpose of section 22, therefore, appears to be to restore theAdministration to roughly the same fiscal position vig-a-vis its newly reducedgovernmental responsibilities (i.e., non-scheduled matters only) as it previouslyenjoyed in relation to its more exeensive functions. This is achieved by, in effect,sharing South Africa's reienues from scheduled matters with the territorialAdministration according to a specialformula. rhis formula allocates to the Administration that proportion of currentrevenues from scheduled matters which it had available before 1969 to offset itsdeficit as to non-scheduled matters. L/

The formula contains only one variable: current revenues from scheduled matters.All other factors are constants 13 since they are averages of past revenues orexpenditures (or of the difference between them, i.e., ofdeficits) in the five years immediately preceding the governmental rearrangementof 1969. The Territory's share of scheduled revenues, therefore, is in practicereduced to a specific fraction of such revenues. This function can be determined ifsufficiently detailed budget figures are available for the years in question.The White Paper 14/ shows how the formula would, hypothetically, have appliedto the 1965-66 budget figures (if the then proposed "rearrangemnent" werealready in effect) although figures for the preceding five years had not beenbroken down according to the categories of scheduled and nonscheduled matters."Thus:Average annual expenditures (preceding 5 years) on non-scheduled matters = R19,706,000;Average annual revenues (preceding 5 years) from non-scheduled matters = R6,901,000;Average annual expenditures (preceding 5 years) on scheduledmatters = R 22,530,000; and(Estimated) 1965-66 revenues from scheduled matters = R 43,331,000.12J This is accomplished by annual Parliamentary grants to the Administration.However, the formula for the grants, which is written into section 22(2)(b)of the 1969 Act, relates it directly to current revenues collected from scheduledmatters, as shown by the derivation of the formula (discusseddirectly below and in Annex II). See also note 6 supra.13/ But note that the State President may modify the definition of "revenues"or "expenditures" or of particular revenues or expenditures for thepurpose of any provision. (Section 22 (5)). A retroactive change in adefinition so as to "alter" one of the "constants" seems unlikely, but itcertainly is possible under the Act. Such a change in a definition should bedistinguished from modification of the formula by amending legislation,although the consequences would not necessarily be different.14J Paragraph 9.

- 371 -Applying the formula, y = (a - b) x d, the Territory's share c + (a - b)of the R 43,331,000 estimated revenues from scheduled matters would becalculated as:- (19,708 00 -A6qn,000) x 43,331,000=22,530,000 + (19,708,ooo - 6,901,000)- L2AQ.7Q. - - - x 43,331,00022,530,o000 + 12,807,0_12,807.q_ k 43,331,000 = 15,7O, 000.35,337,000If 1965-66 had been the cut-off year for the calculation of the five-year averagesunder the formula in section 22 (2) (g), instead of 1969, it would now be possible

to calculate the Territory's share of the revenues from scheduled matters each yearby multiplying the current revenues fromsuch matters by 2,87,00035,337,000Co nients on Section 22 (2)In transferring legislative and administrative powers from Windhoek to Pretoria,the South African Government left the territorial Administration with politicalpowers virtually identical with those of the provincial administrations. L5/Logically it might, at the same time, have restructured the Territory's financialpowers, resources and relationship with the Republic to. parallel those of theprovinces. L/ The changes which were effected did, indeedcbring aboutconsiderable uniformity, but they left the following differences, inter alia,.between the Territory and the provinces according to the White Paper:(i) The territorial Administration retains control of income taxeslevied on "individuals:' (However, the South African Governmentcollects the tax and pays it over to the Territory.) IV(ii) The territorial Administration retains the right to levy estatetaxes and taxes on donations. (The Territory formerly levied anestate duty but had abolished it prior to the publication of tbeWhite Paper. It didnot at that time levy a tax on donations.)lA5- See analysis in digest of South-West Africa Constiution Act of 1968,technical supplement, "Powers of the Legislative Assembly". 2/ See WhitePaper, paragraph 10. I_/ Paragraph 14. Paragraph 7 points out that as to s9htaxes there are"important differences in respect of the definition of 'gross income',method of collection, rebates, exemptions and deductions, and especiallythe rates of taxation, which are considerably lower in South WestAfrica than in the Republic".Wf Paragraph 15.

- 372 -(iii) The "pay-as-you-earn system (P.A.Y.E.)" is not in effect inNamibia. D(iv) The South African Government controls the diamQpd export dutyand the diamond profits tax, but does so under-existing legislationin force in the Territory. 20_/(v) Auction dues and taxes on betting do not exist in the Territory. ?1/(vi) There is no equivalent of the (provincial) personal tax or ofthe provincial income tax in the Territory. L/(vii) South African subsidies on petrol and diesel oil continue. 23/In referring to financial rearrangements which might have been, butwere notmade, the White Paper mentioned several reasons for differentiatingbetween the Territory and the provinces; but all stressed, in one way or another,the special conditions obtaining in Namibia. 24/ There were hints in the WhitePaper, however, that alterations were contemplated in the foreseeable, if not theimmediate, future which would bring the Territory's financial relationship withthe Republic more into line with that between the provinces and the Republic. 25/

Item (c)In so far as the provision for sharing income taxes collected from companies isconcerned, the Territory is treated, in principle, as a fifth province. There aresome variations, however. Thus, under the 1971 tax legislation 26/ the basic rateon income earned by companies in Namibia was 35% whereas the rate on incomeearned in South Africa was 40%. The total amount of taxes collected in theTerritory was, therefore, less than that collected on the same gross income in theprovinces. However, 14-2/7% of the gross taxes collected in the Territory wasreturned to the territorialD/ Paragraph 16.20 Paragraph 19.21/ Paragraph 22.21 Paragraph 23.Paragraph 39.See, e..g., paragraphs 10, 11, 13, and 39. Paragraph 5, discussing the "broadprinciples" to be taken into account in revamping the financial relations betweentie Republic and the Territory, stressed, inter alia, that their rearrangement shoulddisturb the people of the Territory aslittle as possible and not impose any additional burdens on territorial tax-payers;that the territorial Administration should have sufficientsources of revenue to enable it to finance "at least a considerableportion of the functions which it will retain";that revenues from suchsources should be "stable as well as elastic," and that the new arrangementsshould be simple and easy to understand. j See, e.g., paragraphs 11, 16, 30.96 Income Tax Act, No. 88 of 1971, section 2 (1) and Schedule 1, paragraph 1(b) (i), (ii).

- 373 -Administration whereas only 12-1/2% of the taxes collected in South Africawas returned to the provinces. It would appear that this differential in thepercentage of taxes which was returned to local governments resulted inNamibia's receiving from Pretoria approximately the same' percentage ofcompany income derived from sources (other than mining) in Namibia as theprovincial administrations received of company income derived from provincialsources. 28/The effect of these provisions apparently favours Namibia, comparedto the provinces, by taxing companies deriving their income in the Territory at alower rate while not decreasing the territorial share of tax revenues accordingly.Such a differential in tax rates can be expected to spur foreign investment inNamibia, despite United Nations resolutions to the contrary.It should be pointed out, on the other hand, that by transferring control. ofcompany incomes taxes and of corporate matters from Windhoek to Pretoria, theSouth African Government, even after allocating a share of such taxes to theTerritory, profited at the expense of the Territory; it absorbed a major source ofrevenue without relieving the Territory of any substantial administrative costs.The Territory was a heavy loser thereby, particularly

in terms of potential revenues, as corporate activity is increasing there. Item (b)Insofar as the Territory's share of revenues from scheduled matters is concerned,9/ it has been pointed out that the amount allocated to the territorialAdministration hinges on only one variable, current revenues collected by theRepublic from such matters. The amount of revenues collected is, in turn,dependent on economic conditions in the Territory and on South African policiesand practices affecting revenue collection, such as changes in tax rates, theincidence of taxation, the definition of revenues and expenditures,30/ and theefficiency of collections.L_/ Fourteen and two-sevenths per cent of taxes collected at a rate of 35%4.998% of income returned to Namibia. Twelve and one-half per cent oftaxes collected at a rate of 40% = 4.82% of income returned to theprovinces.These percentages are not absolutely fixed. In 1970 Pretoria returned15% of such taxes collected at a rate of 33-1/3% (= 4.9995% of income).See Act No. 52 of 1970, sections 2 (1), (3), and Schedule 1, paragraphI (b), (i), (ii)?9 The amount is not, as a matter of law, a share of earmarked revenuescollected by the South African Government, but a sum-calculated as a proportionof the amount of such revenues. See note 9 above. 30/ See note 13 above.

- 374 -A primary effect of the 1969 governmental rearrangement has been tokeep the Territory from attaining the relative financial independence whichburgeoning industrial and mining development seemed to be bringing withinreach after the long inter-war era of depression and drougot. (It should be notedthat even before the 1969 rearrangements, implementation of the "native nations"provisions, of the Odendaal Plan had entailed heavy expenditures, unbalancingthe territorial budget and requiring extensive loans from South Africa; however,such expenditures were mostly of an extraordinary,. non-recurring nature.) 31/The pre-emption by Pretoria of the major sources of revenue 32/ makes it unlikelythat the Administration will ever again be able to balance its budget fromavailable sources within the Territory. It will need the share of revenues fromscheduled matters which is allocated by the Republic, and that share may bealtered at any time on the basis of considerations totally unrelated to territorialwelfare. 3/ The pre-emption of those revenue sources has also cost the TerritorialAdministration theflexibility that would result from having multiple sources of revenue, all of whichwould probably not be affected in the same manner and at the same time byevents or conditions outside the Administration's control.34/It should be further noted that, although the formula for revenue-sharing isdesigned to allocate to the Territory that proportion of current revenues fromscheduled matters which was available before 1969 to offset its deficit as to non-scheduled matters, the hypothetical example in the White Paper M/ suggests 16that its functioning will nevertheless operate to the long-term1/ Section 22 (3) (b) specifically provides that revenues and expenditures

in connection with the Loan Account, which for the years immediatelypreceding 1969 reflected loans involved in implementing the "nativenations" provisions of the Odendaal Plan, shall not be taker intoaccount under subsections (1) and (2). The purpose, obviously, is to avoidskewing the formula by including large sums of an extraordinary,non-repeating nature in the five-year averages.32/ Except personal income taxes and (potentially) estate and gift taxes;see above at notes 17 and 18 (p. 371).3 See especially White Paper, paragraph 11.But see White Paper, paragraph 5, indicating that a broad objective ofthe financial arrangements between the Republic and the Territory wasto ensure that revenues available to the territorial Administration shouldbe "stable as well as elastic." By assuming the social welfare function,the South African Government should prevent a temporary downturn in theeconomy from having a major depressing effect on development since theTerritory will not have to divert its decreasing revenues to economicassistance and relief.3V See page 370 above.The figures given in the hypothetical example are not sufficient totest this supposition.

- 375 -advantage of South Africa and at the long-term expense of its former mandate:I.e., the Territory will be deprived of the probable future increased surpluses (ofnet revenues from scheduled matters over net deficits from non-scheduledmatters) which it would otherwise have enjoyed, assuming continuation of currentrates of growth. 3In addition to assuring the Territory's continued financial dependenceon the Republic, the changes effectuated in 1969 appear to be leading inevitablyto the complete economic integration of the Territory into the Republic.In the first place, the matters transferred to the Republic include most of thosewhich, directly or indirectly, affect and influence the economic life of theTerritory, e.g, banking, companies, insurance, mining etc. These scheduledmatters are now administered by South African officials and must therefore beexpected to be made to conform to the policies and practices of the Republic.Further, the transfer of the major sources of revenue to the Republicinevitably leaves most territorial development dependent on South African funds,either directly (through loans or special grants, subsidies, etc.) or indirectly(through the territorial Development and Reserve Fund).3/ To the extent that theRepublic is called upon to finance territorial development, it must be anticipatedthat it will favour those projects which complement or supplement South Africanplans and projects and that it will veto or disfavour projects which are not in linewith.South Afriean objectives.In addition, the transfer of major functions from the Territory to the Republic hasled logically, if not necessarily, to the merging of related or ancillary territorialinstitutions or systems into their South African counterparts. In particular, after

the transfer of agricultural matters to Pretoria / the South West Africa Land andAgriculture Bank was, in accordance with a White Paper recommendation, L/merged into the South African Land and[/ It is probable that expenditures on non-scheduled matters, such as (white)schools and public health services (in the "white area"), which were perforcelimited and austere in the earlier years, will grow far more rapidly than revenuesfrom non-scheduled sources, even assuming higher personal incometaxes and the (re-) institution of estate and gift taxes. Thus the Territorywill need a larger share of revenues from scheduled matters in order to giveadequate service as to non-scheduled matters. At the same time itappears probable that South African expenditures on scheduled matterswill not increase as fast as revenues therefrom increase; in particularthe cost of services in the "native nations" will probably be increasinglyfoisted onto the Africans in those areas as a means of giving them "increasedresponsibility for their own affairs"./ Moneys can be transferred to the Development and Reserwe Fund from theterritorial Revenue Fund only if the Revenue Fund obta'ns moneys from the SouthAfrican Government to overcome the normal diiicit as to nonscheduled matters.3/ Act No. 25 of 1969, section 14 (d) L (u)_i and schedule, item 13.-; / Paragraphs 24, 25.

- 376 -Agriculture Bank. Wh With the great bulk of public employees (other thanteachers) in the Territory transferred to various South African ministries, theterritorial public service pension system was absorbed imto an expanded andnewly retitled South African system, the Provincial and the Territory ServicePension. WSummary of the consequences of the financial rearrangements(1) The "scheduled matters" transferred from the Territory to theRepublic by the 1969 Act include many of the major sources of revenue formerlyavailable to the territorial Administration, whereas the non-scheduled or "local"functions vhiih remain the responsibility of the Administration include many ofits costlier activities. Consequently, it is highly probable that Namibia vill not, inthe foreseeable future, be able to balance its budget frm the revenues whichremain available to it. from intra-territorial sources.(2) The revenue-sharing provisions of section 22 (2) (b) and (c) of the1969 Act are designed to reimburse the territorial Administration for net budgetdeficits resulting from the transfer of scheduled matters to South Africa. Thesection, as read with other related legislation, appears to compensate Namibiafairly for such deficits; the Republic does not seem to be profiting financiallyfrom the 1969 "rearrangements" at the expense of its former mandate, althoughfuture effects of the rearrangements could be less favourable to Namibia.(3) Although the revenue-sharing provisions appear to compensate the Territoryadequately for budget deficits resulting from the transfer of scheduled matters toPretoria, that transfer has nevertheless had the effect of stripping Namibia of therevenue sources which could .reasonably have been expected to increase and

thereby to enable the Territory to achieve substantial financial independence fromthe Republic in the future. Namibia i's now, and can be expected toocontinue tobe, dependent on South African subvention to balance its operating budget as wellas to provide for territorial development. In fact the South African Governmenthas attempted to use this as rationalization for its occupation of Namibia, claimingthat it is subsidizing the territorial. Administration, vhich othervise could notfunction.(4) The operation of the 1969 Act, supplemented by other legislationcontemplated in the White Paper, ill result in the virtual economic annexation ofNamibia by the Republic. In effect, the same provisions which have reducedNuabia's political powers to those of a province are also operating to reduce theTerritory economically to provincial status.W Land Bank Amendment Act, No. 31 of 1969.Provincial and the Territory Service Pension Act, No. r,. of 1969.

- 377 -Appendix IAnnex IDetails of Sub-sections (1) and (2) of Section 22 of the.SouthWest Africa AffairsAct, No. 25 of 1969Subsection ().This subsection provides that the SOUTH-WEST AFRICA ACCOUNT'of the(South'African) Consolidated Revenue Fund shall have credited to it:(a) territorial revenues * derived from scheduled matters;(b) interest received by the Minister of Finance from the South AfricanLand and Agriculture Bank on that portion of the capital of theformer Land and Agriculture Bank of South-West Africa (now mergedinto the South African Bank) which consists of loans made'by theterritorial Admini stration;(c) moneys appropriated by Parliament to the Account;(d) moneys accruing to the Account from any other source &; and(e) an amount annually calculated as a percentage (determined by theMinister of Finance in consultation with the Administrator-inExecutive-Committee) of gross revenues (after deduction of paymentsunder jection 51 (2))collected by the Republic under the Customsand Excise Actj No. 91 of 1964.Subsection (2)This subsection provides that the SOUTH-WEST AFRICA REVEHUE FUNDshall receive:(a) territorial revenues * from non-scheduled 00 matters;(b) an amount annually from the (South African) Consolidated RevenueFund, charged to the South-West Africa Account and calculated asfollows:amount = a - b x d, as explained below; andc+a-b

(c) an amount annually from the (South African) Consolidated Revenue Fundrepresenting such proportion of the income tax collected fromcompanies on income derived from sources (other than mining) withinthe Territory as the Act levying the tax shall proyide.

- 378 -The amount to be received annually by the SOUTH-A'EST AFRICA RVEFUND from the (South African) ConsolidatedRevenue Fund and charged to the South-W'est Africa Account shall be calculatedas follows:amount = x d, or5-year average annual expenditures * fromSouthA'est Africa Revenue Fund on non-scheduled°0matters5-year average#annual expenditures * frau South-Aest Africa Revenue Fnd on scheduled matters:5-year averageo annual territorial revenues* from nonscheduled°0 matters5-year averagelannual expenditures * from South-West Africa Revenue Fund on non-scheduled"matters::5-year average[ annual territorial revenues* from non-scheduled c mattersterritorilal revenues* fr,scheduled° matters*

- 379 -* Excluding revenues (i) "accruing to any body other than the Sttate or theAdministration" and (ii) arising out of the Loan Account of the AAdministration(subsection 3 (a), (b)). But the State President may vary the deefinition of"revenues" or of particular revenues from time to time (subsfctioon (5)).0 I.e., all those listed in the Schedule annexed to the South-Weest Africa AffairsAct of 1969 (except posts, telegraph, telephone and fradioo (subsection (3)(a)) as to which subsection ()applies). The administration of sccheduled matterswithin the Territory is now the responsibility of the appropriatee Minister of theRepublic.&Moneys standing to the credit of certain territorial accounts are to be disposedof as the State President may determine (subsection (6))). See also the WhitePaper, paragraph 27,on this point." This section provides, indirectly, for the payment of a certalin proportion ofcustoms dues to the governments of Botswana, Lesotho and Swazjiland undertheir multilateral customs agreement with the Republic.oo I.e., those not listed in the Schedule annexed to the South-VWest AfricaAffairs Act of 1969, the administration of which continues to be carried out bythe territorial Administration.I Average for the five years immediately preceding the effecti.ve date of the SouthWest Africa Affairs Act of 1969.

** Excluding expenditures in connection with the Loan Account of theAdministration (subsection(T)(b)). But the State President may vary thed4efinition of"expenditures" or of particular expenditures from time to time ((subsection (5)).: Including (i) subsidies on petrol and diesel oil (see also Whaite Paper, paragraph39) and (ii) remuneration of, or pension contributions in respect of,persons in the service of the territorial Administration who arem employed inconnection with non-scheduled matters (subsection(2)(b), item (8a)).It" Including Administration expenditures in respect of customs anad excisemattersand contributions (i) to the South African Government for policee and weatherbureau services and (ii) to the South African Government or the RailwayAdministration as interest, capital redemption, or compensation for lossess underguarantee agreements (subsection(2) fb), item (c)).MIncluding the amount of Land Bank interest and custom and excise moneyscredited to the South-West Africa Account under subsection (1) (subsecticon(2)(b), item(d)).

- 380 -Appendix IAnnex IIM'athematical Derivation of the Formula in Section 22 (2) b) forsharing Revenues from Scheduled Matters,Based on the Explanation Found in White PaDer, Paragraph 8According to paragraph 8 (c) of the White Paper, revenues from'scheduledmatters are to be divided between the Republic and the Territory on the basis ofthe ratio of:the average annual expenditures for the previous five years on scheduled matterstothe average annual expenditures for the previous five years on non-scheduledmatters minus the average annual revenues for the same period from the samematters (= the average annual deficit for that period as to nonscheduled matters).Stating this manner of allocating revenues from scheduled matters inquasimathematical terms:Republic's share of revenues average annual expendituresfrom scheduled matters on scheduled mattersTerritory's share of revenues average annual deficit as tofrom scheduled matters non-scheduled matters.Or, using mathematical symbols, R = E where T DR is the Republic's share of revenues from scheduled matters,T is the Territory's share of revenues from scheduled matters, E is the averageannual expenditures on wheduled matters, andD is the average annual deficit as to non-scheduled matters.And, S = R + T, or R = S - T, where S is the total revenues from scheduledmatters.

Using the-formula R = E, then T = R x D T D E

- 381 -Substituting (S -T) for R, T (S -T) x D orXT -(S x D) (T x D) orT x E = (S x D) - (T x D) or (T xE) + (T xD) = S x D orT (E + D) = S x D or T (E.+ D) - D x S orT DxS or(E + D)Ti- D S(E + D)But T = D x . is the mathematical equivalent of the formulafound in Section 22 (2) (b), i.e., the Territory's share = (a -ab)c + (a)- b)This follows since:( a - b) is the average annual deficit on non-scheduled matters(D in the derivation above);c is the average expenditures on scheduled matters (E in the derivation above);and d is the current revenues from scheduled matters (S in the derivation above).

- 382PART IIIAppendix IIPURPORTED REPEAL OF PASS LAWSIn June 1975 South African officials indicated that Namibian pass laws had beenrepealed. Government spokesmen referred to Proclamation No. 105 ,Df 1975,which was dated 9 April 1975 but only published, without any fanfare, a monthlater. 2/In fact, Proclamation 105 repealed only one pass law, the Extra-Territorial andNorthern Natives Control Proclamation of 1935, L/The repealed 1935 Proclamation was directed exclusively to Africans from othercountries("extra-territorial" natives) and from north of the "Police Zone". Everysuch African was required to have a pass issued by a government official orauthorized labour recruiting agent in order to enter or to remain in the PoliceZone. The Proclamation required every affected African to produce his or herpass onofficial demand, under criminal penalty; an African who lacked a pass wasalso subject to involuntary removal from the Police Zone. The Proclamation alsoprovided for the removal of Africans deemed not to be "law-abiding".Employment provisions in the Proclamation were superseded in fact by the 1972Employment Bureaux Regulations. ,/While repealing the 1935 Proclamation, which applied to certain Africans only,Proclamation 105 of 1975 left in effect the following pass laws, which apply to allAfricans in the Territory: the Native Administration Proclamation of 1922; 4-theUrban Areas Proclamation; / and the two Employment Bureaux RegulationsProclamations. V

Proclamation 105 of 1975 also repealed the ancient Masters and ServantsProclamation of 1920 2/ which had inter alia, made it a criminal offence fof anAfrican to breach his employment contract. (The Employment BureauxRegulations (q.v.) now provide administrative penalties for the same act.) The1975 Proclamation also repealed certain harsh provisions of the Natives on MinesProclamation of 1917. ./-i~ overnment Gazette No. 4704, 9 May 1975.Proclamation No. 29 of 1935 (South-West Africa).Proclamation No. 323 of 1972.Proclamation No. 11 of 1922 (q.v.).Natives (Urban Areas) Proclamation No. 56 of 1951 (q.v.)Employment Bureaux Regulation Proclamation No. R. 323 of 1972 (q.v.); andEmployment Bureaux Regulations for Namas Proclamation, No. R. 32 of 1973(q.v.).*1 Proclamation No. 34 of 1920 (South West Africa).Control and Treatment of Natives on Mines Proclamation, No. 3 of 1917.

- 383PART IIIAppendix IIINOTE ON PRACTICES "ESTABLISHED" IIN NAMIBIA CONTRARY TOCHARTER PURPOSES AND PRINCIPLESAs indicated in Part I, the review and digest does not attempt to coverSouth African practives "established" in Namibia which are contrary to thepurposes and principles of the Charter. However,- this appendix does containsome brief comments on a few practices.Some of these practices are based on legislation, in whole or in part,whereas others have no legislative basis. No attempt has been made to classify thepractices in this respect, however.

- 384 -Action implicitly on behalf of or concerning NamibiaDuring the period when the International Court was consideing 'the Namibianquestion posed to it by the United Nations Security Council, 2/and for a whilepiereafter the South African Government tried to act in fact on-behalf of orcbncerning Namibia without explicitly stating that it was so aciing. The (vernmentthus attempted to avoid obviously flouting its international obligaVions as speled-out in tlie Advisory Opinion rendered on 21 June 1971 while continuing to reapthe benefits ofits actual violations of international law.As spelled out in paragraphs 101-10- of the 1972 report of the Council forNamibia to the General Assembly, South Africa took the following actions.- it enacted legislation purportedly, but not explicitly, applying toNamibia under the formula that applies the law to "any territory inrespect of which Parliament is competent to legislate";- it signed a treaty relating to double taxation which, without explicitlybeing applied to Namibia, covers all businesses established under

South African law - a phrase which includes all companies doingbusiness in Namibia, since under the Companies Act they are deemedregistered under South African law;- it credited to South Africa fish which were caught in Namibian waters,mostly by boats based in Namibia and landed in Walvis Bay, or otherNamibian ports; and- it purported to represent Namibia in the International Commission onSouth East Atlantic Fisheries.While South Africa subsequently seemed to drop the rather artificialformula for purportedly applying legislation to Namibia, it has continued toattempt to represent Namibia without explicitly so characterizing its actions./ Legal consequences for States of the Continued Presence of South Africa inNamibia (South West Africa) notwithstanding Security Counce Resolution 276(1970), Advisory Opinion, I.C.J. Reports 1971, p. 16.

- 385 -Apparently non-discriminatory legislationDuring the 1971 Parliamentary session, the Government began to draft legislationso that the portions applying to Namibia did not qn_ their face contain provisionswhich discriminated according to race.In fact the change was cosmetic, not fundamental. Paragraph 90 of tht 1971Report of the Council for Namibia to the General Assembly pointed outat leastfour ways of making legislation discriminatory in operation without appearing todiscriminate:(i) "grandfather clauses" - provisions which in effect disqualifya person for lenefits if he did not qualify under an earlier,discriminatory law;(ii) issuing an apparently non-discriminatory law, followed later byvirtually unnoticed regulations which are explicitly discriminatory;(iii) providing generally for different treatment for different (unspecified)"groups", a term broad enough, as government spokesmen have admitted,.toinclude racial groups; or(iv) reference to specific population groups (Herero, Damara, etc.)rather than to "white" or "Bantu".These practices apparently were introduced to impress world opinion whilethe Namibian issue was before the International Court of Justice. 2/ The variousformulae are still employed from time to time, but less frequently than they werewhile the Advisory Opinion was being considered or first handed down.1/ Legal Consequences for State of the Continued Presence of:South krica inNamibia (South West Africa) notwithstanding Security Counil Resolution 276(1970), Advisory Opinion, I.C.J. Reports 1971, p. 16.

- 386 -Assimilation of the Namas to ColouredsThe "racial" classification of the Namas has fluctuated bftween, "native". (or"Bantu") and Coloured since the Second World 'War. Populatin figures as to 4-he

number of Coloureds in the Territory rose and fell during the 1950s as 4outhAfrican officials wavered on the classification of the llamas.Recently the trend has become clear, that Namas are to be treated asColoureds. Thus they are specifically excluded from the purview of section 22(1) (a) of the 1968 Constitution, 2/ which reserves jurisdiction over "nativeaffairs" to Parliament; and they are included under section 22 (1) (v), "mattersspecifically affecting coloured persons (including Namas)..." They are groupedwith Coloureds (and Basters) as non-whites subject to the provisions of theIdentity Documents in South-West Africa Act?/ and excluded from the coverageof the Bantu Education Act / as applied to the Territory. Parliament has enactedseparate education acts for Coloureds, Basters and Namas.The Namas are also exempted from the purview of the 1972 EmploymentBureaux Regulations, _/ but they are subject to virtually identical regulations /which Coloureds and Basters are not.Act No. 39 of 1968. No. 37 of 1970. No. 47 of 1953. Employment BureauxRegulations ProclamationNo. R. 323 of 1972. Employment Bureaux Regulationsfor Namas Proclamation, No. R. 32 of 1973 (q.v.).21K

- 387 -Blood transfusionsBlood collected for transfusions is segrega:ted accordin to the race of the donorand transfused only to persons of the same race.if See Government Notice No. R. 699 of 1960 (Union), South. West AfricaOfficialGazette No. 2252, 20 May 1960.

- 388 -4: 2: 1 formulaThere appears to be a general practice under South African legislation currentlyapplied, or purportedly applie, to the Territory tm.pay social benefits on a 4: 2: 1ratio. That is, benefits paid to white, are twice those paid to Coloureds or Indiansunder the same circumstance_ and four times those paid to Africans - if Africansare entitled to any benefits at-All. I_/ This ratio does not apply, of course, when benefits are directlyproportional to some base figure, as workmens' compensation payments areproportional to the wages of injured workers. In such a case discrimination inwage rates is passed on, often with even wider racial differentials than in the caseof standardized benefits.Government spokesmen have denied the existence of a formula, but they admitthat in actual practice the payments suggest one:"We have never worked on a fixed ratio . No such policy exists.We may do so approximately. However, no policy has been laid downfor a ratio between the various earnings." ./ (Emphasis added.)

Legislation analyzed in the digest and elsewhere suggests that an approximate 4:2: 1 ratio is characteristic of many, although not all social benefits.When social benefits are increased, the increases are sometimes granted on a 4: 2:1 basis, thus perpetuating the original formula which is assumed here, and alsoincreasing the cash differences between the amounts paid the different "races". Insome cases, however, a percentage increase in the ratio of 4%: 2%: 1% is appliedto existing benefits, reflecting the increasing concentration of income in the handsof the minority. In such a case not only are the differences between the amountspaid to whites, Coloureds, and Africans considerably increased, but the originalformula, of 4: 2: 1, is modified to 4: less than 2: considerably less than 1.Territorial social legislation also provides, or provided, benefits which differmarkedly according to race. These seem on occasion to approach a 4: 2: 1formula, but do not follow any pattern very consistently. 3/_/ See House of Assembly Debates (Hansard), 4 March 1971, col. 2026; 15 June1971, col. 9250.Minister of the Interior, Debates, 15 June 1971, col. 925;,See, e.g. Regulations framed under section 90 of the Childen's Ord., 1961,Government Notice No. 75 of 1962, South West Africa Officiatl Gazette No.2399, 7 May 1962. Specific figures have been amended since thaf date, butrelationships among them remain more or less constant.

- 389 -Fringe benefits for Black government employeesBlack government employees are not only paid less for equal work, butthey also receive less in the form of "fringe benefits".Examples are particularly numerous in the South African Pplice Force, which ofcourse operates in the Territory:Subsistence allowances for police officers when en official duty away fromHeadquarters are as follows:for White officers: R3.10 - R5.00 per dayfor non-white officers: not exceeding Rl.40 per day I_/Amounts payable for costs involved in storing or moving furniture andpersonal effects on transfer (supplementary to other payments provided in otherregulations) are as follows:for Whites: up to R1O0;for non-whites: up to R50 ./The wife and children of a white member of the Police For-c are, with certainlimitations, entitled to medical, dental and hospital treatment at public expense.There is no comparable provision for the families of nonwhite officers. 3/Discrimination exists in other parts of government service as well:Thus, regulations apparently still in effect provide that an annuity due on thedeath or disablement of a government employee resulting from the discharge ofhis or her duties shall be payable to a white female minor dependant until shereaches the age of 21 or sooner marries and to a white male minor untilhe reaches 18. It is payable to a Black minor dependant, male or female, until heor she reaches 16. 4/

_/ Government Notice No. R. 203 of 1964 (Republic), South West Africa OfficialGaZette No. 2530, 14 February 1964. Figures are outdated but believed tobe representative./ Government Notice No. R.941 of 1970, South African Government Gazette No.2735, 19 June 1970, amending earlier regulations./ Government Notice No. R.203 of 1964 (Republic), South Westi Africa OfficialGazette No. 2530, 14 February 1964, amended by Governmentliotice No. R.941of 1970, South African Government Gazette No. 2735, 19 Jume 1970.4/ Government Notice No. R.1929 of 1965 (Republic), South Weit Africa OfficialGazette No. 2686, 18 January 1966.

- 390 -Regulations governing annual leave (vacation) and sick leave for governmentemployees grant more leave to whites than they do to non-whites with the samelength of service. Thus, for annual leave purposes:whites in non-classified (lower-ranking) posts with 5-104years of serviceare grouped with non-whites with at least 15 years of service; and whites in non-classified posts with less than 5 years' service aregrouped with non-whites with 10-15 years' servicefor sick leave:whites with 10 years or more of service are grouped with non-whiteswith at least 20 years of service; andwhites with 5-10 years of service are grouped with non-whites with10-20 years of service. /,,/ 1971 amendment to regulations issued under Administration Employee PensionFuadOrdinance, No. 17 of 1957, South West Africa Official Gazette No. 3139, 17Februar.1971.

- 391 -"Job reservation"There is no legislation requiring, or even explicitly permnitting, "job*sservation't in Namibia. iHowever, by long-standing practice, enforced by the white unions, jobpeservation is written into mining contracts; and in fact, although not by formalagreement, certain jobs are.understood tobe whi* rjobsi4 man industries. Thatimplicit understanding covers supervisory positions if white workers are involved.J/ Cf. the Industrial Conciliation Act, No. 28 of 1956, section 77, inthe Republic.

- 392 -Non-appointment of non-whitesWhenever a law provides for the appointment of Namibians to a public .oard oragency, only whites are appointed, as a matter of counse. This practice is followed

even when non-whites are clearly affected by the operation bf the law or, in somecases, when they are exclusiyely affected. /There is no lapwrquiring. ouh uniracial appointments; nor is'there any territoriallaw prohibiting multiracial meetings of official bodies./ See the Rehoboth Investment and Development. Corporation Act, No. 84 of1969, under which only white directors have been appointed.

- 393 -Non-consultation with BlacksThe Native Nations Act I/ is based on the philosophy of the Odendaal Report,which proclaims the right of each "people" or "nation" to develop according to itsown culture, traditions and genius. Howevex, whites are normally assumed to beable to speak for Africans, who are not even consulted pro forma on matterswhich are not explicitly and exclusively related to "homeland" affairs.Thus, when the Minister of the Interior was asked in Parliamentary debatewhether territorial non-whites had been consulted concerning the then proposedIdentity Documents in South-West Africa Bill, he replied:The hon. member for Bezuidenhout wants to know whether thedifferent population groups in South West Africa were consulted.I can inform the hon. member that the Administrator of South WestAfrica welcomes this measure.,... As far as South West Africa is concerned, the.Administrator of South West Africa is surely theresponsible mouthpiece in this regard...2/1/ No. 54 of 1968.._/ House of Assembly Debates (Hansard), 30 July 1970, col. 716.

- 3914 -Paternalistic Approach to ColouredsTerritorial Coloureds do not suffer from all the disadvantages and indignities towhich Africans are subject. For example, the Wpge and Industrial ConciliationOrdinance, No. 35 of 1952, defines "e-loyee" to exclude "natives", but notColoureds, in the portions deiling ith unions and the resolution of industrialdisputes. Nevertheless, whitr dealings with individual Coloureds and with theColoured comwunity tend to be paternalistic in spirit and patronizing in tone.Thus, even under the "elected" Coloured Council, a majority of the Councilmembers will not be elected by Coloured voters.Similarly, under the Rehoboth Investment and Development Corporation Act, 1/the board of directors of the corporation is to consist of whites only because thegovernment believes Basters to be unqualified to fill even a single director's seat.As a token gesture, Community members may be chosen to serve on committeesof the board.The patronizing attitude may be discerned eyen in the proclamations establishingwhite and coloured townships:- the provisions as to Coloured townships arealways minutely detailed, allowing the inhabitants of the township not theslightest discretion as to type, placement, style etc., of plot in the area;proclamations establishing white townships, while also detailed, do not go into so

much detail or spell out the minutiae of each provision in an insulting manner.Typical proclamations should be compared to obtain the full effect, e.g.:Coloured townshipsProclamation No. 81 of 19614 (South West Africa) approving Khomasdal(Extension 1); South West Africa Official Gazette No. 2588, 16 November 1964.Proclamation No. 57 of 1971 (South West Africa) establishing Lordsville(Karasburg); Official Gazette No. 3200, 2 August 1971White townshipsProclamation No. 414 of 1965 (South West Africa) establishing Swakopmund(Extension 3); Official Gazette No. 2648, 15 July 1965Proclamation No. 43 of 1971 (South West Africa) establishing Moersig; OfficialGazette No. 3181, 15 June 1971.1/ No. 84 of 1969, q.v.

- 395 -Race ("population") classificationUntil the enactment of the Identity Documents in South-West AfricaAct,l/ there was no general law prescribing general race classification in tieTerritory.- Of course, certain laws long established in the Territory required Acialclassification of the persons specifically subject to their provisions; such lawsoften contained unsophisticated provisions governing classification, andfrequently these provisions varied from one law to the next. In fact, classificationwas normally a rough and ready matter which could be carried out by any (white)clerk, particularly since there was no sizeable Coloured population to raise thespectre of "passing for white". As the Minister of the Interior explained:In South West Africa there is an almost unique method ofpopulation classification. It is done administratively. If anydoubts or objections are raised, the Ldministrator and a numberof officials or LLegislative AssemblyJ Executive Committee members forma committee which decides on such matters...._/As the system of identity documents is implemented, this practice of ad hocpopulation classification comes to an end- although, in the absence of adequatedefinitions in the Act, classification for the identity documents may be carried outaccording to arbitrarily established criteria, which may thus be perpetuated ythem!No. 37 of 1970.House of Assembly Debates (Hansard), 30 July 1970, col. 715.

- 396 -Senarate amenitiesThe Reservation of Separate Amenities Act, l/ which permits the establishment ofseparate and unequal public facilities and a.'enities *or Blacks, has not beenapplied to the Territory.Nevertheless, by long-established custom Blacks in the Territory do not

have equal access to public facilities or amenities. Although over two decades agothe South African courts upheld the right to equal public facilities for all until theywere reversed legislatively, it is unlikely that territorial courts would have beenequally colour-blind at that time, and inconceivable that they would be so now.Blacks, in fact, have either inferior and inadequate facilities and amenities inNamibia, or none at all.Late in 1975 legislation was enacted in connexion with the so-called"constitutional conference" on the future of the Territory topermit_ desegregationof some hotels, restaurants and cafes. It appears, however, that, in view of certainearly experiences under the Ordinance, authorities are treating the law verygingerly. In any case financial considerations and social pressures are expected toseverely limit the effects of such desegregation in respect of indigenous Blacks.Black government officials and guests, as well as Black tourists, may enjoy thebenefits of desegregation, where it occurs.I/ No. 19 of 1953.

- 397 -Wa rates for BlacksAll wage statistics for the Territory show that Blacks, particularlyAfricans, receive far less in wages and salaries than whites in every sector of theeconomy. I/ A decade ago the differential was admi'tted to be a matter of officialpolicy, to further "development" and white interests in the Territory. 2/ Tody it isdownplayed and.deprecated. 3/ Put it still exists.Wage differentials exist in part because Blacks, particularly Africans, arefrequently barred from the pleasanter and better paid jobswhich are in effect, ifnot in law, reserved for whites. /But even when white and black Namibians do the same work or have the samejob titles, as in the lower grades of the South African Police (who function in theTerritory as well as the Republic), the differences are blatant. Outdated figures,from 1964, which are believed, however, to be representative, show thedifferences between the beginning and top salaries for whitc and black constablesand sergeants:white constable R840 to R1,818 per yearblack constable R272 to R 560 per yearwhite sergeant R1,512 to R2,160 per yearblack sergeant R 480 to R 660 per year 5/I/ Current data is found in the Sbuth West Africa Survey; 1974, pp. 59-60,and may be extrapolated from data for South Africa found in SPROCAS (StudyProject on Christianity in Apartheid Society), Power,-Privilege and Property(Report of the Economics CommissionT (Johannesburg, 1972). 2/ South WestAfrica Survey, 1967, pp. 92-94. 3/ Ibid., 1974, pp. 59-60.14/ See sugrA, p. 391, "Job Reservation". 5/ Government Notice No. R. 203(Republic) of 1964, South West Africa OfficialGazette No. 2530, 14 February 1964.

- 398 -

Similarly, at the receiving end of the law enforcement system, prisoners doingskilled, semi-skilled or clerical work receive weekly "gratuities" as follows:Vhite male prisoners: Indian and Coloured male prisoners: African maleprisoners: White female prisoners:1 s. per week, with increments to a maximum of 2 s. 6dc per week6d. per week with increments to a a maximum of 1 a. 6d. per week3d. per week with increments to a maximum of 1 s. per week6d. per week with increments to a maximum of 2 s. per weekIndian and Coloured female prisoners: 3d. per week with increments to amaximum of 1 s. per weekAfrican female prisoners:3d. per week with increments to a maximum of 6d per week /Witnesses in both civil and criminal cases who live more than five miles from thecourt receive compensation for expenses in the following amounts:no night accommodation overnight accommodation necessary necessaryWhiteColoured, Asian, or African chiefor headman Other AfricanR6.ooR3.00Rl.50 R1.00R3.00 R2.00An additional allowance to a witness for income forfeited is subject to a raciallydetermined maximum:for a whiteRIO.O0 per dayfor a Coloured, Asian, or African chief or headman: R5.00 per dayfor any other African:R2.50 per day 1/Government Notice No. 847 of 1958 (Union), South West Africa Official GazetteNo. 2156, 15 July 1958. Figures outdated but believed to2e representative.Government Notice No. R.1751 of 1971 (Republic), South West Africa OfficialGazette No. 3138, 15.February 1971 (witnesses in criminal cases), noticepurportedly applicable to Namibia; Government Notice No. R.1752 of 1971(Republic), South West Africa Official Gazette No. 3138, 15 February 1971 (civilcases), notice purportedly applicable to Namibia.

- 399 -It should be added that news stories from Namibia indicate that when whites --primarily secondary school students, not adults -- temporarily replaced strikingAfricans.in 1971-2 in performing essential iuncipal services, they were paid on anentirely different wage scale.-:Despite the differences in Jobs generally held by whites-qand non-whites, whichmake direct comparison of wages difficult, some conclusions can safely be drawn.Thus, a study of the Newmont Mining Company made by a graduate student inthe School of Business Administration at Columbia University comes to the

conclusion that there is a gross disproportion of pay between whites and Africans,with the underpayment of the latter supporting the economic growth from whichwhites in the Territory profit. 8/There is reason to believe that, if there is no equality of pay for equal work, thereis certainly no proportionality of pay for different work, where Africans have nochoice of employer. In the industrialized countries of Western Europe and NorthAmerica the differential in pay between skilled and unskilled workers is on theorder of 1.50-1.15 : 1.00. In Namibia (extrapolating, where necessary, from SouthAfrican data) it appears that the differential between whites (allegedly skilled) andBlacks (allegedly non-skilled) runs from 3 or 1 1 to 13 : 1 (in mining). 9/8_/ To the same effect see Murray, "The Namibian Economy: An Analysis of theRole of Foreign Investment and the Policies of the South AfricanAdministration," and Morris, "The Black Workers in Namibia," in g 1C Qf EmeFirms in Namibia.(Africa Publications Trust 1971)../ SPROCAS, sura, note 1, p. 21.

- o00 -PART IV. INDEXES AND BIBLIOGRAPHIC NOTEBibliographic NoteSouth African statutes, as amended, are found in the Statutes of the Republic ofSouth Africa Classified and Annotated from 1910 £Butterworth, 1967, andannually) ("Consolidated Statutes"). This publication (in many volumes, bothSouth African official languages) is brought up to date annually by replacementsheets which can be slipped into the loose-leaf covers. All session laws are alsofound in the South African Government Gazette (an official publication), whichalso publishes sub-legislation and proclamations of the State President.In general, amendments to statutes made prior to or during 1967 are not indicatedin the digest, as they are set out with full explanations in the ConsolidatedStatutes. (For the original wording of statutes which are printed in their 1967amended form in the Consolidated Statutes, one must refer to the Gazette or to theSouth African session laws, which were published annually up to l9W.)Ordinances, proclamations of the State President or of the Administrator, andterritorial sub-legislation are published in the South West Africa Official Gazette.This Gazette is now available outside the Republic and the Territory, but for aperiod in the late 1960s it was -- apparently intentionally -- withdrawn fromforeign circulation.Until quite recently all territorial ordinances, proclamations, notices and orders, aswell as South African statutes applied to or relevant to the Territory, were printedin the official Laws of South West Africa, published annually. This publicationappears to have been discontinued, leaving the Official Gazette as the source forthese territorial laws.Enactments of the Legislative Councils of the various "homelands" havebeen published in South African Government Gazette; in some cases they are nowpublished in "homeland" official gazettes.There are few texts of consequence dealing exclusively, or even primarily, withNamibian law.

Insofar as the constitutionalrelationship between the Republic and the Territory isconcerned$ most texts which discuss the problem antedate General Assemblyresolution 2145 (XXI). The acknowledged constitutional experts, Hahlo andKhan, in their recent book, The South African Legal System and its Background,mention the issue only to let it pass without analysis. Of course the 1966Judgment and the 1971 Opinion of the International Court each led to a spate ofarticles:in South African and other law reviews, some of which touched on theissue at least tangentially; but there was no detailed study as regards their effecton legislation.

- 1.0 -Dugard's recent book, The South West Africa/Namibia Dispute (1973) bringstogether basic documents and scholarly writings and criticisms on the controversybetween South Africa and the United Nations.The leading case on the status of the Territory, handed aown in the early days ofthe mandate, is Rex v. Christian, 192 A.D. 101. The:most recent is S. v.Tuhadeleni, 1969 (1) S.A. 153 (A.D.), Sff' 1967 (4) S.A. 511 (T), which dealtwith the effect of international law on the right of Parliament to legislate for theTerritory.To the extent that South African law applies, or purports to apply, toNamibia, or that Namibian law follows South African law, texts on South Africanlaw can be referred to; and there are excellent standard texts covering variousfields of law. Particular reference should be made to Part II of A.S. Mathews'book, Law, Order, and Civil Liberties in South Africa (1971), which deals withmost of the repressive legislation discussed in the digest.A useful source of information on current develbpments in laws which may applyto Namibia is the Annual Survey of South African Law, issued by the Law Schoolfaculty of Witwaterrsrand University (about nine months after the close of theyear surveyed). It is divided by general subject matter and covers not only newlegislation but important sub-legislation and judicial decisions in each field.The annual Survey of Race Relations issued by the South African Institute ofRace Relations contains considerable information -- political, economic, socialand legal -- on Namibia, although usually it is not easily separated from the dataon South Africa. Official South West Africa Surveys, issued from time to time --most recently in 1967 and 197 -- contain much valuable information.Parliamentary debates reported in the South African House of AssemblyDebates(Hansard) are also invaluable in interpreting new legislation and amendments toexisting laws.Most major libraries receive several South African law reviews, includingparticularly the South African Law Journal. Professors Dugard, van Niekerk, andMathews write frequently on subjects relevant to Namibia. In the late '601 andearly '70's South African law reviews carried many articles on criminal procedurein response to proposals made by Mr. Justice Hiemstra to abolish certainCommon Law rights of arrested persons.

Law reviews of most Common Law countries contain some articles andcoinments on laws applied to Namibia. In the United States such materials arelikely to be found in some of the new reviews of transnational law.Publications of the International Commission of Juristb have repeatedly discussedSouth African repressive legislation, which also Rffects Namibia.

- 4o02 -PART IVIndex to Acts of Parliament applied or ourtortedly ajDled to NaViibia.Abattoir Comission Act, No. 86 of 1967Section 61A (1) (added by Act No. 30 of 1973, section 9) purportedly applies theAct to South West Africa and Eastern Caprivi Zipfel. Abortion and SterilizationAct, No. 2 of 1975Section 11 purportedly applies the Act to South West Africa and Eastern CapriviZipfel.Abuse of Dependence-Producing Substances and Rehabilitation Centres Act, N-o.1.1Section 64 applies the Act to South West Africa and Eastern Caprivi Zipfel.Section 1 (.xxvil) defines the "Republic" to include "the territory". Administrationof Estates Act, No. 66 of 1965Section 108A (added by Act No. 54 of 1970, section 10) purportedly applies Actto South West Africa and the Eastern Caprivi Zipfel. Admiralty JurisdictionRegulation Act. No. 5 of 1972Section 5 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Admission of Advocates Act, No. 74 of 196.Section 12 applies the Act to "the territory". Section 1 defines "the territory" asSouth West Africa, including the Eastern Caprivi Zipfel.Admission of Persons to the Republic Regulation Act, No. 59 of 1972Section 56 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Section 1 (xi) defines "Republic" to include the territory, and further provides thata reference to a province includes a reference tVp the territory. Age of MajorityAct. No. 57 of 1972Section 8 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.

- 403 -AScdPersons Act. No. 81 of 167Section 16 (1) of the Pension Laws Amendment Act, No. 79 of 1968, authorizesthe State President, by proclamation in the South African Government Gazette, todeclare the principal act to be applicable to South West Africa, including theEastern Caprivi Zipfel, "in respect of natives" "in so :tar as those provisions relateto Bantu or Bantu persons". Proclamation No. R.293 of 1968 purportedly appliesthe Act to South West Africa and the Eastern Caprivi Zipfel. Agricultural CreditAct, No. 28 of 1966

Section 57A (added by Act No. 66 of 1970, section 18) purportedly applied theAct to South West Africa.Agricultural Pests Act, No. 3 of 1973Section 36 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Section 1 (xv) defines the "Republic" to include South West Africa. Air ServicesAct, No. 51 of 1949Section 1 (amended by Act No. 6 of 1964, section 1) provides that "'South-WestAfrica' includes the Eastern Caprivi Zipfel...." Section 24 (amended by Act No. 6of 1964, section 7) applies the Act to South West Africa.Aliens Act, No. 1 of 1937Section l3bis (added by Act 59 of 1961, section 3, and amended by Act No. 69 of1962, section 12) applies the Act to South West Africa and the Eastern CapriviZipfel.Section I defines "Union" to Include the Territory. Aliens Registration Act, No.26 of 1939Section 23 (added by Act No. 69 of 1962, section 16) applies the Act to SouthWest Africa and the Eastern Caprivi Zipfel. Animal Diseases and Parasites Act,No. 13 of 1956Section 35A (added by Act No. 9 of 1973, section 5) purportedly applies the Actto South West Africa and the Eastern Caprivi Zipfel. Section 1 (added by Act No.9 of 1973, section l(d)) defines the "Republic" to include South West Africa.Animals Protection Act, No. 71 of 1962Section 10A (added by Act No. 7 of 1972, section 11) purportedly applies the Actto South West Africa and the Eastern Caprivi Zipfel.

- 4o4 --nimal Slaughter, Meat and Animal Products Hygiene Act, No. 87 of ig6TSection 42A (added Act No. 36 of 1972, section 2) purportedly applies the Act toSouth West Africa and the Eastern Caprivi Zipfel. Section I (amended by Act No.36 of 1972, section 1) defines "Republic" to include South West Africa. ApostolicFaith Mission of South Africa (Private) Act, No. 24 of 1961Section 8A (added by Act No. 4 of 1970, section 2) purportedly applies the Act toSouth West Africa and the Eastern Caprivi Zipfel. Apportionment of DamagesAct, No. 34 of 1956Section 6 (substituted by Act No. 58 of 1971, section 2) purportedly applies theAct to South West Africa and the Eastern Caprivi Zipfel. Arbitration Act, No. 42of 1965Section 41 applies the Act to South West Africa and the Eastern Caprivi Zipfel.Architects Act, No. 35 of 1970Section 35 purportedly applies the Act to South West Africa. Archives Act, No. 6of 1962Section 15 applies the Act to South West Africa and the Eastern Caprivi Zipfel.Arrments Development and Production Act, No. 57 of 1968

Section 1 (ix) purportedly applies the Act to South West Africa by defining"Republic" to include South West Africa. Arms and Ammunition Act, No. 75 of1969Section 17 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Assessment of Damages Act, No. 9 of 1969Section 2 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Atomic Energy and Nuclear Installations (Licensing and Sectirity) AmendmentAct, No. 39 of 1965Section 12 applies the Act to South West Africa.

- 405 -Atomic Energy Act,- No. 90 of 1967Section 36 purportedly applies the Act to South West Africa, Section 1 (xii)defines "the territory" to include the Eastern Caprivi Zipfel. Attorneys' AdmissionAmendment and Legal Practitioners' Fidelity Fund Act, No. 19 of 191..Section 40B (added by Act No. 71 of 1971, section 16) purportedly applies theAct to South West Africa and the Eastern Caprivi Zipfel. Section 1 (b)and (S)(added by Act No. 71 of 1971, section 16) provides that a reference to a"province" includes a reference to South West Africa, and defines the "Republic"to include South West Africa. Attorneys, Notaries and Conveyancers AdmissionsAct, No. 23 of 1934Section 35A (1) (added by Act No. 93 of 1970, section 16) purportedly applies theAct to South West Africa and the Eastern Caprivi Zipfel. Aviation Act, No. 74 of1962Section 1 defines "Republic" to include "any territory in respect of whichParliament is competent to legislate...." Banks Act, No. 23 of 1965Section 52 (1) applies the Act to South West Africa and the Eastern CapriviZipfel.Bantu (Abolition of Passes and Co-ordination of Documents) Act, No. 67 of 1952Section 16 provides that the State President may, by proclamation in the Gazette,apply the provisions of the Act to South West Africa. Bantu Affairs Act, No. 55of 1959Sections 2, 3 and h and the regulations issued under section 15 (1) (a), arepurportedly applied to Soith West Africa and the Eastern Caprivi Zipfel by theThird Bantu Laws Amendment Act, No. 49 of 1970, section 6. Bantu Authorities'Service Pensions Act, No. 6 of 1971Section 8 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Bantu Education Act, No. 47 of 1953 Section 15ter (added by Act No. 4h of 1970,section 5) purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.

- 4o6 -Bantu Labour Act, No. 67 of 196.

Section 32: "The State President may, by proclamation in the Gazette, and subjectto such conditions, modifications and exceptions at may be prescribed in theproclamation, apply any of the provisions of this Aet to the territory of SouthWest Africa or any portion thereof, and, in the event of any conflict between theprovisions so applied and the provisions of any law in force in the said territory orsuch portion thereof, the provisions so appliedshall prevail."Bantu Laws Amendment Act, No. 46 of 1962Section 16 (2) provides that paragraphs (a), (b) and (c) of sub-section (1) shallapply in connexion with any law in force in South West Africa.Bantu Reserves (South West Africa) Act, No. h. of 1945Bantu Special Education Act, No. 24 of 196Section 22A (added by Act No. hh of1970, section 7) purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Basters of Rehoboth Education Act, No. 85 of 1972Bible Society of South Africa Act, No. 15 of 1970Section 23A (added by Act No. 57 of 1975, section 33) purportedly applies theAct to South West Africa and the Eastern Caprivi Zipfel.Section 1 (amended by Act No. 57 of 1975, section 32) defines "Republic" toinclude "the territory".Births, Mrriages and Deaths Registration Act, No. 81 of 1963Section 51A (added by Act No. 58 of 1970, section 46) provides: "(1) This Act,except sections 7A (alteration of birth registration to indicate classification interms of the Population Registration Act and 42 (4) -savings as to priorregulationsj, and any amendment thereof, and any regulations made under thisAct, shall apply also in the territory of South West Africa, including the EasternCaprivi Zipfel, and in such application the word 'Bantu' shall be construed as'native' and any compound or derivative of 'Bantu' shall be construed an acorresponding compound or derivative of the word 'native'."Blind Persons Act, No. 26 of 1968Section 16 (1) of the Pension Laws Amendment Act, No. 79 ef 1968, authorizesthe State President, by proclamation in the Government Gazettesto declare theprincipal act to apply to South West Africa, including the Eastern Caprivi Zipfel,"in respect of natives.., in so far as those provisions relate to Bantu or Bantupersons".The Actias purportedly applied by Proclamation No. R.293 of 1968 (Republic).

- 407 -"Boss Act," (General La.w Amendment Act, No. 101 ofl69,section 29)Subsection (3) purportedly applies section 29 to South West Africa and theEastern Caprivi Zipfel.BoinA and Wrestling Control Act, No. 39 of 195.Section 25 provides that the Act may, by proclamation in thej GovernmentGazette, be made applicable to South West Africa. Broadcasting Act, No. 22 of1936

Section 29A (added by Act No. 60 of 1969, section 17) purportedly applies theAct to South West Africa and the Eastern Caprivi Zipfel. Buildin Societies Act,No. 2. of 1965Section 85 applies the Act to South West Africa and the Eastern Caprivi Zipfel.Canned Fruit Export Marketing Act, No. 100 of 1967Section 11 (substituted by Act No. h8 of 1971, section 1) purportedly applies theAct to South West Africa and the Eastern Caprivi Zipfel. Carriage by Air Act, No.17 of 191.6Section 1 (substituted by Act No. 5 of 1964, section 1) provides that: "'Republic'includes any territory in respect of vhich Parliament is competent to legislate".Census Act, No. 76 of 195TSection 18A (1) (added by Act No. 40 of 1968, section 3) purportedly applies theAct to South West Africa and the Eastern Caprivi Zipfel. Section 1 (amended byAct No. h0 of 1968, section 1) defines the "Republic" to include "the territory" ofSouth West Africa. Children's Act, No. 33 of 1960Section 93A (added by Act No. 71 of 1973, section 22) purportedly applies theAct to South West Africa and the Eastern Caprivi Zipfel. , Section 1 (added byAct No. 74 of 1973, section 1 (i)) defines the "Republic" to include the territory.Civil Aviation Offences Act, No. 10 of 1972Section 9 purportedly applies the Act to "any territory in respect of whichParliament is competent to legislate". Section 1 (vi) defines the "Republic" toinclude "any territory in respect of which Parliament is competent to legislate".

Civil Defence Act.No. 39 of 1966Section 19 (as substituted by Act No. 69 of 1967, section 5), purportedlyempowers the State President to make the Act applicable to South West Africaand the Eastern Caprivi Zipfel.Proclamation 205 of 1969 purportedly applies the Act to South West Africa andthe Eastern Caprivi Zipfel."Civil Proceedings Evidence Act, No. 25 of 1965Section 43 applies the Act to South West Africa and the Eastern Caprivi Zipfel.Section 1 defines the "Republic" to include South West Africa. ColouredDevelopment Corporation Act, No. 4 of 1962Section 26bis (added by Act No. 98 of 1965, section 15): "The Corporation mayin the territory of South West Africa exercise such powers as may be conferredupon it by ordinance of the Legislative Assembly of that territory: Provided thatfunds acquired by the Corporation by virtue of its powers in the Republic shall notbe used in connexion with the exercise of its powers in the said territory."Ordinance No. 28 of 1966 was enacted to authorize the Corporation to exercise itspowers in the Territory. Coloured Persons in South Vest Africa Education Act,No. 63 of 1972 Commonwealth Relations Act, No. 69 of 1962Sections 13 and 28 apply to South West Africa and the Eastern Caprivi Zipfel.Section 29, which spells out applicability, provides that the sections of the Actwhich amend the South African Citizenship Act, No. 44 of 1949, shall beapplicable to South West Africa and the Eastern Caprivi Zipfel.Companies Act, No. 61 of 1973

Section 2 (1) purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Section 1 defines the "Republic" to include South West Africa. CompulsoryMotor Vehicle Insurance Act, No. 56 of 1972Section 35 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Section 1 (xiv) defines the "Republic" to include South West Africa.- 4o8 -

- o9 -Constitution and Elections Amendment Act, No. 79 of 1973Sections 89 and 90 amend Establishment of Elected Coloured Council for SouthWest Africa Ordinance, No. 29 of 1966. Control of the Meat Trade in South WestAfrica Amendment AGt, No. 69 of 1972 Conventional Penalties Act, No. 15 of1962Section 6 applies the Act to South West Africa. Copyright Act, No. 63 of 1965Section 49 applies the Act to South West Africa. Section 1 defines the "Republic"to include "the territory" and "the territory" to mean "the territory of South WestAfrica including the Eastern Caprivi Zipfel...." Criminal Procedure AmendmentAct, No. 32 of 1974.Sertion 2 purportedly amends sections 233, 234, 290 and 337 of the /South WestAfrica7 Criminal Procedure Ordinance, No. 3h of 1963. Criminal ProcedureAmendment Act, No. 33 of 1975Sections 6 through 11 purportedly amend the Criminal Procedure Ordinance, No.34 of 1963.Cultural Institutions Act, No. 29 of 1969Section 18 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Currency and Exchanges Act, No. 9 of 1933Section 9 (6) applies the provisions of that section to South West Africa. Customsand Excise Act, No. 91 of 1964Section 5 provides that "For the purposes of this Act, the territory of South WestAfrica (including the Eastern Caprivi Zipfel...), shall be deemed to be a part ofthe Republic". Customs and Excise Amendment Act, No. 96 of 1967Section 3 (4) purportedly applies section 3 to South West Africa and the EasternCaprivi Zipfel.Customs and Excise Amendment Act, No. 105 of 1969Section 41 provides that "Sections 39 and 40, too, shall apply also in the territoryof South West Africa, including the Eastern Caprivi Zipfel."

Customs and Excise Amendfent Act, No. 89 of 1971Section 3 (2) provides that: "Sub-section (1), too, shall qply also in the territory ofSouth West Africa, including the Eastern Capri-i Zipfel." Dairy Industry Act, No.30 or 1961Section 35A (added by Act No. 32 of 1972, section 3) purportedly applies the Actto South West Africa insofar as it relates to rargarine or a margarine factory.

Section 1 (as amended by Act No. 32 of 1972, section 1) defines the "Republic"to include "the territory" in relation to margarine and defines"the territory" to include the Eastern Caprivi Zipfel. Dairy Industr. LaysAmendment Act, No. 32 of 1972Sections h-6 of this Act purportedly amend the Dairy Industry Control Ordinance,No. 29 of 1962, insofar as it relates to margarine. Decimal CoinaAe Act, No. 61of 1959Section 9 (1) applies the Act to South West Africa and the Eastern Caprivi Zipfel.Deeds Registries Act, No. 47 of 1937Section 102A (added by Act No. 3 of 1972, section 13) purportedly applies theAct, (except sections 70 through Tbis, 8h, and 85) to South West Africa and theEastern Caprivi Zipfel.Deep Level Mining Research Institute Act, No. 27 of 1946Section 1 defines "Union" to include South West Africa. Defence Act. No. 14 of1957Section 153 (1) applies the Act to South West Africa and the Eastern CapriviZipfel.Section 1 defines the "Republic" to include South West Africa. DefenceAmendment Act, No. 85 of 1967Sectior66 and TO purportedly apply sections 66-68 inclusive to South WestAfrica and the Eastern Caprivi Zipfel. Development of Self-Government forNative Nations in South Vest Africa Act, No. 54 of 1968Section 1 purportedly applies the Act to the Eastern Caprivi Zipfel.

- hii -Disability Grants Act, No. 27 of 1968Section 16A (added by Act No. 17 of 1971, section 5) purportedly applies the Actto South West Africa and the Eastern Caprivi Zipfel.! Section 16 (1) of thePension Laws Amendment Act, No. 79 of 4968, authorizes the State President, byproclamation in the Government Gazette to declare the Act to apply to SouthWest Africa and the Eastern Caprivi Zipfel, "in respect of natives ... in so far asthose provisions relate to Bantu or Bantu persons".Drugs Control Act, Nd. 101 of 1965Section 39 applies the Act to South West Africa and the Eastern Caprivi Zipfel.Electoral Consolidation Act, No. 46 of 1946South-West Africa Affairs Amendment Act, No. 23 of 1949, section 34, appliesthis Act to South West Africa. The Act applies automatically to the EasternCaprivi Zipfel.Electoral Laws Amendment Act, No. 81 of 1961Section 6 applies the Act to South West Africa and the Eastern Capiivi Zipfel.Electoral Laws Amendment Act, No. 72 of 1962Section 60 provides that the following provisions do not apply to South WestAfrica or the Eastern Caprivi Zipfel:Section 1 (e) (definition of "white person")Section 20(d) (reference to identity cards of voters)Section 25 (c), (d)(reference to identity cards of voters)

Section 34 (1) (reference to identity cards of voters) Evidence Act, No. 14 of 1962Section 7 applies the Act to South West Africa. Explosives Act, No. 26 of 1956Section 31A (added by Act No. 74 of 1972, section 3) purportedly applies the Actto South West Africa and the Eastern Caprivi Zipfel. Export and Import ControlAct, No. 45 of 1963Section 6 applies the Act to South West Africa and the Eastern Caprivi Zipfel.Export Credit Re-insurance Act. No. 78 of 1957Section 12 (amended by Act No. 88 of 1962, section 5) applies the Act to SouthWest Africa.Section I defines the "Republic" to include South West Africa.

- 412 -Extradition Act, No. 67 of 1962Section 22 (1) applies the Act to South West Africa and the Eastern CapriviZipfel.Fertilizers, Farm Feeds, A&ricultural Remedies and Stock Remedies Act, No. 36of 1947Section 24 (added by Act No. 17 of 1972, section 3) purportedly applies the Actto South West Africa and the Eastern Caprivi Zipfel. Finance Act, No. 37 of 1943Section 4 (substituted by Act No. 70 of 1974, section 7(1)) purportedly applies theAct to South West Africa and the Eastern Caprivi Zipfel. Finance Act, No. 103 of1967Section 8 of the Act purportedly applied to South West Africa and the EasternCaprivi Zipfel by section 8 and the schedule of Act No. 95 of 1972. Finance Act,No. 91 of 1971Section 8 of the Act purportedly applied to South West Africa and the EasternCaprivi Zipfel by section 8 and the schedule of Act No. 95 of 1972. FinancialInstitutions (Investment of Funds) Act, No. 56 of 1964Section 10 applies the Act to South West Africa and the Eastern Caprivi Zipfel.Fishinx Industry Development Act, No. 44 of 1944Section 39A (added by Act No. 55 of 1973, section 17) purportedly applies theAct to South West Africa.Section 1 (definition added by Act No. 55 of 1973, section 1 (f)) defines the"Republic" to include South West Africa. Foodstuffs, Cosmetics andDisinfectants Act, No. 54 of 1972Sectioni 28: "The State President may, at the request of the governrient oradministration of a state or territory which is not part of the Republic, byproclamation in thei Gazette apply any provision of this'Act to any foodstuffs,cosmetics or disinfectants which arrive at or are imported through an importharbour or other place in the Republic and which are addressed to or intended fortransmission to such State or territory, and may at any time withdraw or amendsuch proclamation by proclamation in the Gazette." Foreign Courts Evidence Act,No. 80 of 1962Section 12 applies the Act to South West Africa and the EUstern Caprivi Zipfel.Section 1 defines the "Republic" to include South West Africa. Forest Act, No. 72of 1968

Section 32A (added by Act No. 37 of 1971, section 7) purportedly applies the ActSouth West Africa and the Eastern Caprivi Zipfel.

- 413-Formalities in respect of Contracts of Sale of Land Act, No. 71 of 1969Section 3 purportedly applies the Act to South West Africa. Formalities in respectof Leases of Land Act, No. 18 of 1969Section 2 purportedly applies the Act to South West Africa. Friendly SocietiesAct, No. 25 of 1956Section 52 applies the Act to South West Africa. Section I defines "Union" toinclude South West Africa. Fuel Research Institute and Coal Act, No. 35 of 1963Section 20A (added by Act No. 27 of 1973, section 10) purportedly applies theAct to South West Africa and the Eastern Caprivi Zipfel. Section 1 (definitionadded by Act No. 27 of 1973, section 1 (d)) defines the "Republic" to includeSouth West Africa and the Eastern Caprivi Zipfel. Gambling Act, No. 51 of 1965Section 12 applies the Act (with minimal exceptions) to South West Africa andthe Eastern Caprivi Zipfel. Section 1 (vi) defines the "Republic" to include SouthWest Africa. General Law Amendment Act, No. 76 of 1962See "Sabotage Act".General Law Amendment Act, No. 102 of 1967Section 22 purportedly applies to South West Africa and the Eastern CapriviZipfel.General Law Amendment Act, No. 101 of 1969See "Boss Act".General Law Amendment Act, No. 102 of 1972Section 29 purportedly amends South West Africa Ordinance No. 11 of 1935.Section 35 purportedly applies to South West Africa and the Eastern CapriviZipfel.General Law Amendment Act, No. 57 of 1975Section 1 is directed to the Rehoboth Gebiet only. General Law FurtherAmendment Act, No. 93 of 1963Section 23 grants special powers to the Legislative Assembly of the Territory inrelation to the Publication of Banns Amendment Act, No. 13 of 1945.

Government non-White ___loyees Pensions Act. No. 42 of 1966 Section 5 appliesthe Act to South West Africa. Governnent Service Pensions Act, No. 62 of 1965Section 28 applies the Act to South West Africa "insofar as -is necessary for theeffective application thereof". Government Service Pension Act, No. 57 of 1973Section 19 purportedly applies Act to South West Africa and the Eastern CapriviZipfel.Section 1 defines the "Republic" to include South West Africa. HazardousSubstances Act, No. 15 of 1973Section 30: "The State President may, at the request of the government oradministration of a state or territory which is not part of the Republic, byproclamation in the Gazette apply any provision of this Act to any grouped ,sic)hazardous substance which arrives at or is imported through an import harbour or

other place in the Republic and which is addressed to or intended for transmissionto a place in such state or territory, and may at any time withdraw or amend suchproclamation by proclamation in the Gazette." Heraldry Act, No. 18 of 1962Section 27 applies the Act to South West Africa. Hire-Purchase Act, No. 36 of1942 Section 20A (added by Act No. 79 of 1970, section 2) purportedly appliesthe Act to South West Africa and the Eastern Caprivi Zipfel. Human SciencesResearch Act, No. 23 of 1968Section 16 purportedly applies the Act to South West Africa. Section 1 defines the"state" to include South West Africa. Identity Documents in South-West AfricaAct, No. 37 of 1970 Immorality Act, No. 23 of 1957Section 24 provides that the State President may be proclamation declare the Actto apply to South West Africa. Immovable Property (Removal or Modification ofRestrictions) Act, No. 94 of 1965Section 10 applies the Act to South West Africa and the Eastern Caprivi Zipfel.Import and Export Control Act, No. 45 of 1963Section 6 applies the Act to the Eastern Caprivi Zipfel. Section 1 defines the"Republic" to include South West Africa.

Income Tax Act, No. 58 of 1962Section ilA (added by Act No. Act to South West Africa.Income Tax89 of 1969, section 40) purportedly applies theAct. No. 89 of 1969Section 55 purportedly applies Income Tax Act, No. 52 of 1970Section 30 purportedly applies Income Tax Act, No. 88 of 1971Section 53 purportedly applies Income Tax Act, No. 90 of 1972 Section 35purportedly applies Income Tax Act, No. 65 of 1973Section 43 purportedly applies Income Tax Act, No. 69 of 1975Section 39 purportedly applies Income Tax Act, No. 85 of 19714Section 71 purportedly appliesthe Act to South West Africa the Act to South West Africa. the Act to South WestAfrica. the Act to South. West Africa. the Act to South West Africa. the Act toSouth West Africa. the Act to South West Africa.Indecent or Obscene Photographic Matter Act, No. 37 of 1967Section 4A (added by General Law Amendmeht Act, No. 101 of 1969, section 26)purportedly applies the Act to South West Africa and the Eastern Caprivi Zipfel.Industrial Development Act, No. 22 of 1940Section 1 (definition added by Act No. 52 of 1964, section 1 (b)) defines the"Republic" to include South West Africa. Inquests Aj No. 58 of 1959Section 25 applies the Act to South West Africa and the Eastern Caprivi Zipfel.Insolvency Act, No. 24 of 1936Section 158ter (added by Act No. 99 of 1965, section 47) applies the Act to SouthWest Africa.Inspection of Financial Institutions Act, No. 68 of 1962Section 10 applies the Act to South West Africa.

Insurance Act, No. 27 of 1943Section 77cuat (added by Ipsurance Amen&ment Act, No. 39 of 1969, secifon 24(1)) purportedly applies the Act to South West Africa and the Eastern CapriviZipfel. International Health Regulations Act, No. 28 of 1974- Section 5 purportedly applies the Act to South West Africa an& the Eastern:!Caprivi Zipfel.:ISection 1 defines the "Republic" to include South West Africa. InterpretationAct, No. 33 of 1957Section 19 (3) (1) of the South-West Africa Affairs Act, No. 25 of 2969, rakessection 13 of the Interpretation Act apply to rules, regulations, and orders madeunder any law in force in South West Africa on the effective date of the SouthWest Africa Affairs Act if such law relates to a scheduled subject. Section 19 (3)(b) of the South West Africa Affairs Act, No. 25 of 1969, makes sections 15 and16 of the Interpretation Act apply to any law in force in South West Africa on theeffective date of the South West Africa Affairs Act if the law relates to ascheduled matter. Judges' Remuneration and Pensions Act, No. 14 of 1975Section 21 (1) purportedly applies the Act to South West Africa. Justices of thePeace end Commissioners of Oaths Act, No. 21 of 1967Section 11A (added by Act No. 55 of 1970, section 2) purportedly applies the Actto South West Africa and the Eastern Caprivi Zipfel. Land Bank Act. No. 13 of1944Section 74A (added by Act No. 31 of 1969, section 18) purportedly applies theAct to South West Africa.Section 2 (1) (added by Act No. 31 of 1969, section 5 (c), (d)) defines the"Republic" to include South West Africa. Land Survey Act, No. 9 of 1927Section 49A (added by Act No. 64 of 1970, section 10) purportedly applies theAct to South West Africa and the Eastern Caprivi Zipfel. Land Surveyors'Registration Act, No. 14 of 1950Section 1 (amended by Act No. 65 of 1970, section 1) defines the "Republic" and"South Africa" to include South West Africa. Land Tenure Act, No. 32 of 1966Section 10A (added by Act No. 67 of 1970, section 5) purportedly applies the Act(except section 5) to South West Africa.-416-

Law Societies' Act, No. 4 of 1975Section 23 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Legal Aid Act, No. 22 of 1969Section 9A (added by Act No. 56 of 1971, section 1) purportedly applies the Actto South West Africa and the Eastern Caprivi Zipfel. Limitation and Disclosure ofFinance Chares Act, No. 73 of 1968Section 19 (1) purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Section 1 (as amended by Act No. 62 of 1974, section 1) defines the "Republic"to include South West Africa. Limitation of Legal Proceedings (Provincial andLocal Authorities) Act, No. 94 of 1970

Section 7 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Livestock Brands Act, No. 87 of 1962Section 25A (added by Act No. 10 of 1973, section 8) purportedly applies the Actto South West Africa and the Eastern Caprivi Zipfel. Livestock BrandsArnendnent Act,_ No. 10 of 1973Section 8 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Magistrates' Courts Act, No. 32 of 1944Section 115A (1) (added by Act No. 53 of 1970, section 21) purportedly appliesthe Act to South West Africa and the Eastern Caprivi Zipfel. Maintenance Act,No. 23 of 1963Section 16A (added by Act No. 39 of 1970, section 4) purportedly applies the Actto South West Africa and the Eastern Caprivi Zipfel. Marketable Securities TaxAct, No. 32 of 1948Section 11 (added by Act No. 103 of 1969, section 4) purportedly applies the Actto South West Africa. Marketing Act, No. 59 of 1968Section 99 purportedly applies the Act to South West Africa insofar as it appliesto Karakul pelts.

-.'arr i a7e Act, No. 25 of 1961Fection 39A (1) (added by Act No. 51 of 1970, section 13) purportedly applies theAct to South West Africa and the Eastern Caprivi Zipfel. I''atrinmonial CausesJurisdiction Act, No. 22 of 1939 section 7ter (as substituted by Act No. 70 of1968, section 22 (i)) purportedly applies the Act to South West Africa and theEastern Caprivi Zipfel. Section 7bis (added by Act No. 17 of 1943, section 1)defines the "Republic" to include South West Africa.Matrimonial Causes Jurisdiction Act, No. 35 of 1942Sections 2 an'i 3 made applicable by their terms to South 'West Africa as well asSouth Africa.Measuring Units and National Measuring Standards Act, No. 76 of 1973Section 9 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Section I (vi) defines the "Republic" to include South West Africa. Medical.Dental and Pharmacy ActNo. 13 of 1928 Section 99 (1) (later &-nended in minorrespects by Act No. 2 of 1935, section7) e-.povered the State President to apply the Act to South West Africa, in whichcase "that territory shall, for all purposes of this Act, be deemed to be a provinceof the Union."Union Proclamation No. 3 of 1929 applied the Act to South West Africa. Theeffect of Proclamation No. 26 of 1929 was to make the Act applicable to theentire Caprivi Zipfel.Medical,_Dental and Supplementary Health Servibe ProTessions! Act, No. 56 of19ThSection 65 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.

Section 1 (xviii) defines the "Republic" to include South West Africa. MedicIalResearch Co-dncjl_ South Africa Act, No. 9 d__ 1969Section 25 purportedly applies the Act to South West Africa.-Section 1 (vi) defines the "Republic" to include South West AIica. M_edicalSchemes Act., No. 72 of 1961Section 45 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.

-419-Members of Statutory Bodies Petsion Act, No. 94 of 1969Section 7 purportedly applies the Act to South West Africa. Section I (xii) defines"the territory" to include Eastern CQprivi Zipfel. Mental Disorders Act, No. 38 of1916Act No. 22 of 1926, section 1, applies the Act to South West Africa, "and for thepurposes of the said Act the mandated territory shall be regarded as a province ofthe UnionThe effect of Proclamation No. 26 of 1929 was to make the Act applicable to theentire Caprivi Zipfel. Mental Health Act, No. 18 of 1973Section 78 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Section I (xxviii) defines the "Republic" to include South West Africa.Merchandise Marks Act, No. 17 of 1941Section 21bis (added by Act No. 39 of 1952, section 3, and substituted by Act No.55 of 1967, section 3), purportedly applies the Act to South West Africa and theEastern Caprivi Zipfel. Merchandise Marks Amendment Act, No. 39 of 1952Section 4 applies to South West Africa. Merchant Shipping Act, No. 57 of 1951Section 3 applies the Act to South West Africa. Mines, Works and Minerals inSouth West Africa Amendment Act, No. 047 of 197 Mining Rights (South WedtAfrica) Act, No. 26 of 1932 Moratorium Act, No. 25 of 1963Section 7 applies the Act to South West Africa, Motor Carrier Transportation Act,No. 39 of 1930Section 22 (1) provided that the Act could be applied to South West Africa byProclamation. Union Proclamation No. 133 of 1933 applied the Act.

-420-Motor Carrier Transportation Amendment Act, No. 50 of 19.h9Act No. 44 of 1955, section 19, applies the Act to South West Africa as of 8 July1949.Motor Vehicle Insurance Act, No. 29 of 1942Section 34 (substituted by Act No. 60 of 1964, section 22)applies the Act to SouthWest Africa and the Eastern Caprivi Ziprel. Mountain Catchrnent Areas Act, No.63 of 1970Section 19 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Nama in South West Africa Education Act, No. 86 of 1972

Narmaland Consolidation and Administration Act, No. 79 of 1972 NationalInstitute for Metallury A No. 90 of 1965Section 14 (substituted by Act No. 48 of 1972, section 7) purportedly applies theAct to South West Africa and the Eastern Caprivi Zipfel. National MonumentsAct, No. 28 of 1969Section 21 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Section 1 (v) defir.es the "Republic" to include the Territory. National RoadSafety Act, No. 9 of 1972Section *29: "This Act and any amendment thereof shall also apply in everyterritory in respect of which Parliament is competent to legislate." NationalSupplies Prdcurement Act, No. 69 of 1970Section 19 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Section 1 (v) defines the "Republic" to include South West Africa. NationalWelfare Act, No. 79 of 1965Section 43A (added by Act No. 13 of 1971, section 5) purportedly applies the Actto South West Africa and the Eastern Caprivi Zipfel. Section 1 (amended by ActNo. 13 of 1971, section 1) defines the "Republic" to include South West Africa.

-421-kqwsar._and Tm jjnt Registration Act, No. 63 of 1971 Section i1 (1) purportedlyapplies the Act to South West Africa and the Eastern Caprivi Zipfel.Section I (vii) defines the "Republic" to include South West Africa. ruclearInstallations (Licensin andoSecurity) Act_,_No. 3 of 1963 Section 15 applies theAct to South West Africa. Section 1 defines the "Republic" to include South WestAfrica. Nuclear Installations (Licensin and Security) Amene~ment Act 89 of 196Section 4 purportedly applies the Act to South West Africa. jursln%_ Acto fi of195Section 58 (substituted by Act No. 31 of 1970, section 1) purportedly applies theAct to South West Africa and the Eastern Caprivi Zipfel. Icc~uational Diseases inMines and Itrks Act, No. 78 of 1973 Section 135 purportedly applies the Act toSouth West Africa and the Eastern Caprivi Zipfel.Section 1 (xxxii) defines the "Republic" to include South West Africa. OfficialSecrets Act,_ _16 of 1226 Section 15 applies the Act to South West Africa.Section 1 defines "Union" to include South West Africa. ParlianentaryvandProvincial Medical Aid Scheme Act,_No. 28 ofj5_.9 Section I (b), (c), and (d)purportedly applies the Act to South West Africa. Parliamentary Service andAdministrators' Pensions Act, No. 81 of 1971Section 25 purportedly applies the Act to South West Africa.

-422-Participation Bonds Act, No. 18 of 196hSection 16 applies thq Act to South West Africa and the Eastern Caprivi Zipfel.Pension Funds Act, No. 2 of 1956

Section 40 applies the Act to South West Africa. Section 1 defines "Union" toinclude South West Africa. Pension Laws Amendment Act, No. 79 of 1968Section 16 (1) purportedly authorizes the State President to declare the relevantActs to apply to South West Africa, including the Eastern Caprivi Zipfel, "inrespect of natives ... in so far as those provisions relate to Bantu or Bantupersons."Pension Laws Amendment Act, No. 15 of 197.Section 2 purportedly applies to South West Africa and the Eastern CapriviZipfel.Performing Animals Protection Act, No. 24 of 1935Section llA (added by Act No. 7 of 1972, section 8) purportedly applies the Act toSouth West Africa and the Eastern Caprivi Zipfel. Pharmacy Act, No. 53 of 19T4Section 51 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel, "except for the purposes of paragraph (b) of the proviso to section6 (1)".Section 1 (xiii) defines the "Republic" to include South West Africa.Pneumoconiosis Compensation Act, No. 64 of 1962Act No. 95 of 1912, section 8 and schedule, purportedly apply the Act to SouthWest Africa and the Eastern Caprivi Zipfel. Section 1 (1) (as amended by Act No.95 of 1972, section 1 (b)) defines the "Republic" to include "the territory of SouthWest Africa, including the Eastern Caprivi Zipfel...".Pneumoconiosis Compensation Amendment Act, No. 50 of 1964Act No. 95 of 1972, section 8 and schedule, purportedly applies the Act to Sou"hWest Africa and the Eastern Caprivi Zipfel. Pneumoconiosis CompensationAmendment Act No. 92 of 1965Section 8 and schedule of Act No. 95 of 1972 purportedly apply the Act to SouthWest Africa and the Eastern Caprivi Zipfel.

Pneuwnoconiosis Compensation Amendment Act, No. 83 of 1968Section 8 and schedule of Act No. 95 of 1972 purportedly apply the Act to SouthWest Africa and the Eastern Caprivi Zipfel. Pneumoconiosis CompensationAmendment Act, No. 8 of 1970Section 8 and schedule of Act No. 95 of 1972 purportedly apily the Act to SouthWest Africa and the Eastern Caprivi Zipfel. Pneumoconiosis Compensation LawsAmendment Act, No. 95 of 1972Section 8 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Police Act, No. 7 of 1958Section 35 (applied by Act No. 43 of 1958, section 4, and Act No. 53 of 1961,section 10) applies the Act to South West Africa and the Eastern Caprivi Zipfel.Section 1 defines the "Republic" to include South West Africa. PoliceAmendment Act, No. 43 of 1958Section 5 applies the Act to South West Africa and the Eastern Caprivi Zipfel.Police and Prisons Officers Pay Act, No. 30 of 1939Section 2 applies the Act to South West Africa. It applies automatically to theEastern Caprivi Zipfel.

Police (South West Africa) Act, No. 19 of 1939 Post Office Act, No. h. of 1958Section 121A (added by Act No. 56 of 1973, section 18) purportedly applies theAct to South West Africa and the Eastern Caprivi Zipfel. Section I (definitionadded by Act No. 56 of 1973, section I (b)): "'Republic' except for the purposes ofsection 13 (2) or (5) (d), includes the territ6ry of South West Africa...".Post Office Re-adjustment Act, No. 67 of 1968Section 1 defines "department" to mean "the Department of Posts and Telegraphsand, in sections 7 to 12 inclusive, includes that branch of the Administration ofSouth West Africa which is charged with the administration, management andoperation of postal, telegraph and telephone services..". Post Office Service Act,No. 66 of 197.Section 1 (1) (xiii) defines the "Republic" to include South West Africa.

-424-Prescribed Rate of Interest Act, No. 55 of 1975Section 4 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Prescription Act, No. 68 of 1969Section 21 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Prevention and Combating of Pollution of the Sea by Oil Act, No. 67 of 1971Section 13 purportedly applies the Act to South West Africa. Section 1 (vii)defines the "Republic" to include South West Africa. Prevention of Counterfeitingof CurrencX Act, No. 16 of 1965Section 11 applies the Act to South West Africa and the Eastern Caprivi Zipfel.Price Control Act, No. 25 of 196.Section 21 (substituted by Act No. 80 of 196T, section 8) purportedly applies theAct to South West Africa and the Eastern Caprivi Zipfel. Prisons Act, No. 8 of1959Section 96 (substituted by Act No. 70 of 1968, section 52) purportedly empowersthe State President to apply the provisions of the Act (with such modifications,exceptions and additions as he may specify) by proclamation to South WestAfrica and the Eastern Caprivi Zipfel. Proclamation No. R. 130 of 1969,published in Government Gazette No. 2406, 23 May 1969, purportedly appliedthe Act to South West Africa. Prize Jurisdiction Act, No. 3 of 1968Section 6 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Professional Engineers Act, No. 81 of 1968Section 32 purportedly applies the Act to South West Africa. Section 1 (xiv)defines the "Republic" to include South West Africa. Prohibition of DisguisesAct, No. 16 of 1969Section 3 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.

-425-

Promotion of the Economic Development of Bantu Homelands Act, No. 1.6 of1968Section 32 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Definition (Iii) defines "Bantu homelands" to include lands set aside under section4 of the South West Africa Bantu Affairs- Administration Act, No. 56 of 195, andland in the Eastern Caprivi Zipfel. Protection of Names, Uniforms and BadgesAct, No. 23 of 1935Section llter (added by Act No. 3 of 1967, section 1) purportedly applies the Actto South West Africa and the Eastern Caprivi Zipfel. Provincial and the TerritoryService Pension Act, No. l4 of 1969Section 10: "This Act and any amendment thereof shall, so far as is necessary forthe effective application thereof, apply also in the territory". Section 1 (xx)defines"the territory" to include the Eastern Caprivi Zipfel. Public Accountants'and Auditors' Act, No. 51 of 1951Section 33 applies the Act to South West Africa. Section I (added by Act 30 of1962, section 1 (b)), defines "Republic" as including South West Africa.Public Accountants' and Auditors' Amendment Act, No. 53 of 1975Section 1T purportedly applies the Act to South West Africa. Public HolidaysAct, No. 5 of 1952Section 6 (amended by Act No. 68 of 1961, section 1) applies the Act to SouthWest Africa and the Eastern Caprivi Zipfel. Public Holidays Amendment Act, No.68 of 1961Section 3 applies the Act to South West Africa and the Eastern Caprivi Zipfel.Public Holidays Amendment Act, No. 39 of 1973Section 3 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Public Health Act, No. 36 of 1919Proclamation No. 36 of 1920 applies the Act to South West Africa. It also appliesautomatically to the entire Caprivi Zipfel. Public Safety Act, No. 3 of 1953Section 5 (1) applies the Act to South West Africa Section 1 (b) defines the"Union" to include South West Africa.

-426Public Service Act, No. 5. of 1957Section 1 defines the "Union" to include South West Africa; it defines"government" (definition substituted by Act No. 66 of 1974, section 51) toinclude "the administration of the territory". Publications Act, No. 12 of 1974Section h6 purportedly applies the Act to South West Afrifa and the EasternCaprivi Zipfel.Quantity Surveyors' Act, No. 36 of 1970Section 34 purportedly applies the Act to South West Africa. Radio Act, No. 3 of1952Section 19A (added by Act No. 93 of 1969, section 16) purportedly applies theAct to South West Africa and the Eastern Caprivi Zipfel. Railway ExpropriationAct, No. 37 of 1955

Section 8 applies the Act to South West Africa. Railways and Harbours ActsAmendment Act, No. 49 of 1949Section 26 empowers the State President, by proclamation in the gazette, to applythe Act to South West Africa. Railways and Harbours Acts Amendment Act, No.63 of 1951Sectiou 24 applies the Act to South West Africa. Railways and Harbours ActsAmendment Act, No. 45 of 1952Section 13 applies the Act to South West Africa.Railways and Harbours Acts Amendment Act, No. 40 of 1953Section 7 applies the Act to South West Africa. Railways and Harbours ActsAmendment Act, No. 49 of 1955Section 11 applies the Act to South West Africa. Railways and Harbours ActsAmendment Act, No. 15 of 1956Section 16 applies the Act to South West Africa.Railways and Harbours Acts Amendment Act, No. 34 of 1957Section 11 applies the Act to South West Africa. Railways and Harbours ActsAmendment Act, No. 44 of 1959Section 48 applies the Act to South West Africa.

-427-Railways and Harbours Acts Amendment Act, No. 2 of 1960Section 3 applies the Act to South West Africa.Railwas and Harbours Acts Amendment Act, No. 62 of 1962Section 12 applies the Act to South West Africa. Railways and Harbours ActsAmen(ment Act, No. 7 of. 1963Section 28 applies the Act to South West Africa. Railways and Harbours ActsAmendment Act, No. 5h of 1964Section 11 applies the Act to South West Africa. Railways and Harbours ActsAmendment Act, No. 6 of 1965Section 80 applies the Act to South West Africa. Railways and Harbours ActsAmendment Act, No. 18 of 1966Section 13 applies the Act to South West Africa. Railways and Harbours ActsAmendment Act, No. 23 of 1967Section 10 purportedly applies the Act to South West Africa. Railways andHarbours Acts Amendment Act, No. 8 of 1968Section 9 purportedly applies the Act to South West Africa. Railways andHarbours Acts Amendment Act, No. 32 of 1969Section 8 purportedly applies the Act to South West Africa. Railways andHarbours Acts Amendment Act, No. 2. of 1971Section 13 purportedly applies the Act (except section 11) to South West Africaand the Eastern Caprivi Zipfel. Railways and Harbours Acts Amendment Act, No.33 of 1972Section 16 purportedly applies the Act (except sections 6 and 7) to South WestAfrica and the Eastern Caprivi Zipfel. Railways and Harbours Acis AmendmentAct, No. 4T of 19T3

Section 16 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Railvays and Harbours Acts Amendment Act, No. 44 of 197Section 17 purportedly applies the Act (except sections 1, 12 and 13) to SouthWest Africa and the Eastern Caprivi Zipfel.

-428-Railways and Harbours Acts Amendment Act, No. 46 of 1975Section 20 purportedly applies the Act (except sections 17-19) to South WestAfrica and the Eastern Caprivi Zipfel. Railways and Harbours Acts SecondAmendment Act, No. 60 of. 1968Section 10 purportedly applies the Act to South West Africa. Railways andHarbours Acts Second Amendment Act, No. 32 of 19@Section 8 purportedly applies the Act to South West Africa. Railways andHarbours Acts Second Amendment Act, No. 1. of 1969Section 13 purportedly applies the Act to South West Africa. Railways andHarbours Acts Second Amendment Act, No. 57 of 1970Section 6 purportedly applies the Act to South West Africa. Railways andHarbours Control and Management Amendment Act, No. 4 of 1958Section 3 applies the Act to South West Africa. Railways and Harbours Controland Management (Consolidation) Act, No. 70 of 1957Section 79 applies the Act to South West Africa. Railways and Harbours PensionsAct, No. 35 of 1971Section 21 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Railwas and Harbours Pensions Amendment Act, No. 26 of 1941Section 8A (added by Act No. 45 of 1974, section 9) purportedly applies the Actto South West Africa and the Eastern Caprivi Zipfel. Railways and HarboursPensions Amendment Act, No. 22 of .1956Section 2 applies the Act to South West Africa. Railways and Harbours Pensionsfor Non-Whites Act, No. 13 of 1974Section 18 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Railways and Harbours Railway Board Act, No. 73 of 1962Section 6bis (added by Act No. 6 of 1965, section 77) applies the Act to SouthWest Africa.

Railways and Harbours Rating of Railvay Property Act, No. 25 of 1959Section 6 applies the Act to South West Africa. Railways and Harbours ServiceAct, No. 22 of 1960Section 38 applies the Act to South West Africa. Railways and Harbours ServiceAmendment Act, No. 43 of 1960Section 2 applies the Act to South West Africa. Reciprocal Enforcement of CivilJudgements Act, No. 9 of 1966Section 11 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.

Section 1 (viii) defines the "Republic" to include South West Africa. ReciprocalEnforcement of Maintenance Orders Act, No. 80 of 1963Section lOA (added by Act No. 40 of 1970, section 6) purportedly applies the Actto South West Africa and the Eastern Caprivi Zipfel. Registration of PedigreeLivestock Act, No. 28 of 1957Proclamation No. 343 of 1970 purportedly applies the Act to South West Africa.Rehoboth Investment and Development Corporation Act, No. 84 of 1969Republic of South Africa Constitution Act, No. 32 of 1961Act No. 102 of 1972, section 30, purportedly applies section 13 of the Act toSouth West Africa and the Eastern Caprivi Zipfel. Residence in the RepublicRegulation Act, No. 23 of 1964Section 10 applies section 9 of the Act to South West Africa and the EasternCaprivi Zipfel.Revenue Laws Amendment Act, No. 88 of 197Section 27 purportedly applies to South West Africa and the Eastern CapriviZipfel."Sabotage Act" (General Law Amendment Act, No. 76 of 1962, 4ection 21)Sub-section (7) (a) (added by Act No. 62 of 1966, section 39) purportedly appliessection 21 (except sub-section (4) (a)) to South West Africa and the EasternCaprivi Zipfel.

-430-Sale of Land on Installments Act, No. 72 of 1971Section 19 purportedly &pplies the Act to South West Africa and the EksternCaprivi Zipfel.Scientific Research Council Act, No. 32 of 1962Section 19 (amended by Act No. 71 of 1964, section 5) applies the Act to SouthWest Africa.Sea Birds and Seals Protection Act, No. 46 of 1973Section 16 (1) (a) purportedly applies the Act to South West Africa. Section 1defines the "Republic" to include South West Africa. Sea Fisheries Act, No. 58 of1973Section 2 (1) purportedly applies the Act to South West Africa "except insofar asit relates to salt." Section 1 (xx) defines the "Republic" to include South WestAfrica. Second Railways and Rarbours Acts Amendment Act, No. 39 of 1963Section 7 applies the Act to South West Africa. Second Railways and HarboursActs Arnendmej, Act . N. 82 of 1971 Section 10 purportedly applies the Act toSouth West Africa and the Eastern Caprivi Zipfel.Sectional Titles Act, No. 66 of 1971Section 43 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Shipping Board Act, No. 20 of 1929Section 1 defines the "Republic" to include South West Africa. Social PensionsAct, No. 37 of 1973Section 20 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.

Section 1 (xv) defines the "Republic" to include South Wesk Africa.Soil Conservation Act, No. 76 of 1969Section 27A (added by Act No. 38 of 1971, section 3) purportedly applies the Actto South West Africa.

-431-Section 1 (amended by Act No. 38 of 1971, section 1 (b) and (c)) definesthe "Republic" to include South West Africa.Soldiers' and War Workers Employment Act, No. 10 of 19.Section 35 applies the Act to South West Africa. South Africa Law CornissionAct, No. 19 of 1973Section 1 defines the "Republic" to include South West Africa. South AfricanCitizenship Act, No. 4. of 1949Section hl (amended by Act No. 23 of 196., section 7) applies the Act to SouthWest Africa and the Eastern Caprivi Zipfel. South African Mint and Coinage Act,No. 78 of 1964Section 2. applies the Act to South West Africa and the Eastern Caprivi Zipfel.South African Reserve Bank Act, No. 29 of 19hSection 25bis (added by Act No. 5 of 1961, section 8, and substituted by Act No.16 of 19T5, section 9) applies the Act to South West Africa and the EasternCaprivi Zipfel.South African Road Safety Council Act, No. 1 of 1960Section 1 defines "Republic" as including "any territory in respect of whichParliament is competent to legislate".South African Tourist Corporation Act, No. 5. of 197Section 1 defines the Wepublic" to include South West Africa. South West AfricaAffairs Act, No. 2. of 1922 South West Africa Affairs Act. No. 25 of 1969Section 24 purportedly applies the Act to the Eastern Caprivi Zipfel. South WestAfrica Affairs Amendment Act. No. 23 of 19h9 South West Africa AffairsAmendment Act, No. 55 of 1951 South West Africa Bantu Affairs AdministrationAct, No. 56 of 195h South West Africa Constitution Act, No. 39 of 1968Section 40 purportedly applies the Act to Eastern Caprivi Zipfel. South WestAfrica Diamond Industry Protection Amendment Act, No. 3 of 1975 South WestAfrica Mental Disorders Act, No. 22 of 1926

-432-South West Africa Railways and Harbours Act, No. 20 of 1922 South WestAfrica Railways and Harbours (Amendment) Act, No. 9 of 1930 Stamp DutiesAct, No. 77 of 1968Section 37A (added by Revenue Laws Amendment Act, No. 103 of 1969, section22) purportedly applies the Act to South West Africa. Section 1 (amended by ActNo. 103 of 1969, section 16 (1)) defines the "Republic" to include South WestAfr-ica. Standards Act$ No. 33 of 1962Section 29 (read with the definition of "territory" in section 1) applies the Act toSouth West Africa.State Attorne Act, No. 56 of 1957

Act No. 7 of 1966, section 6, applies the Act to South West Africa and the EasternCaprivi Zipfel. "Republic" defined (definition added by Act No. 7 of 1966,section .7) as including South West Africa. Statistics Act, No. 73 of 1957Section 16A (1) (added by Act No. 41 of 1968, section 4) purportedly applies theAct to South West Africa and the Eastern Caprivi Zipfel. Stock ExchangesControl Act, No. 7 of 1947Section 27 A (added by Act No. 86 of 1971, section 41) purportedly applies theAct to South West Africa and the Eastern Caprivi Zipfel. Section 1 (added by ActNo. 86 of 1971, section 1 (f))defines the "Republic" to include South West Africa.Stock Theft Act, No. 57 of 1959Section 19A (added by Act No. 13 of 1973, section 3) purportedly applies the Actto South West Africa and the Eastern Caprivi Zipfel. Subdivision of AgriculturalLand Act, No. 70 of 1970Section 14 purportedly applies tho Act to South West Africa. Sugar Act, No. 28of 1936Section 10 (2) (added by Act No. 17 of 1955, section 4 (b)) applies the Act toSouth West Africa.

-433-Suppression of Communism Act, No. h. of 1950Section 18 (substituted by Act No. 62 of 1966, section 5 () purportedly applies theAct to South West Africa and the Eastern Capri4 Zipfel. Supreme Court Act, No.59 of 1959Section 15 applies the Act to South West Africa. Section 1 (substituted by Act 15of 1969, section 1.' 'Provincial division' includes the Eastern Cape division, theNorthern Cape division and the South West Africa division."Suretyship Amendent Act, No. 57 of 1971Section 4 purportedly applies the Act toSouth West Africa and the Eaptern Caprivi Zipfel.Tear-Gas Act, No. 16 of 1964.Section 6 applies the Act to South West Africa and the Eastern Caprivi Zipfel.Territorial Waters Act, No. 87 of 1963Section 8 applies the Act to South West Africa. Section.1 (iii) defines the"Republic" to include South West Africa. Terrorism Act, No. 83 of 1967Section 9 (2) purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel. Trade Metrology Act, No. 77 of 1973Section 45 purportedly applies the Act to South West Africa and the EasternCaprivi Zipfel.Section 1 (xvii) defines the "Republic" to include South West Africa. Trademarksin South West Africa Act, No. 48 of 1973 Transfer Duty Act, No. 40 of 19h9Section 21 A (added by Act No. 103 of 1969, section 9) applies the Act to SouthWest Africa.

-434-Trust Moneys Protection Act, No. 3h. of 193.

Section 8A (added by Act No. 5T of 1975, section 7) purportedly applies the Actto South West Africa and the Eastern Caprivi Zipfel. Unit Trusts Control Act, 1o.18 of 19h.Section 12bis- (1) (added by Act No. 48 of 196, section 15) applies the Act toSouth West Africa and the Eastern Caprivi Zipfel. Unlawful Organizations Act,No. 34 of 1960Section 5 applies the Act to South West Africa. Veterinary Act, No. 16 of 1933Section 17A (added by Act No. 19 of 1972, section 6) purportedly applies the Actto South West Africa and the Eastern Caprivi Zipfel. Vexacious Proceedings Act,No. 3 of 196Section 3 applies the Act to South West Africa. War Pensions Act, No. 82 of 1967Section 1 (xvii) defines the "Republic" or the "Union" to include South WestAfrica.War Veterans' Pension Act. No. 25 of 1968This Act is not made applicable to South West Africa, but the persons eligibleunder it include every non-native who took part in the Anglo-Boer War, Zulu War1906, World War I or World War II and who is a South African citizen and hasadequate residence in South Africa or South West Africa. Water Act, No. 54 of1956Section 180 (1) (substituted by Act No. 77 of 1969, section 13) purportedlyempowers the State President, by proclamation in the Gazette- to apply any partor all of the Act to South West Africa. Section 17. (1): "The provisions of this Actshall apply in relation to any land in the territory of South West Africa which if itwere within the Union would have been riparian to the Orange River in terms ofthis Act, and such land shall for the purposes of the application of the provisionsof this Act be deemed to form part of the province of the Cape of Good Rope".Water Research Act. No. 3. of 1971Section 15 purportedly empowers the State President, by proclamation in theGazette, to apply any part or all of the Act to South West Africa and the F-sternCaprivi Zipfel.

Weights and Measures Act, No. 13 of 1958Section h9A (added by Act No. 55 of 1969, section 14) Spurprtedly applies theAct to South West Africa and the Eastern Caprivi Zipfei. Wills Act, No. 7 of 1953Section 8 (substituted by Act No. 80 of 1964, section 221) applies the Act toSouth West Africa and the Eastern Caprivi Zipfel. Wine, Other FermentedBeverages and Spirits Act, No. 2:2 of 1957Section 40A (added by Act No. 62 of 1972, section 8) purportedly empowers theState President, by proclamation in the Gazette, too apply any part or all of theAct to South West Africa. Wine and Spirit Control Amendment Act, No. 74 of1974Section 57 (1) (a) purportedly empowers the State Preslident by proclamation inthe Gazette, to apply any part or all of the Act to South West Africa. Workmen'sCompensation Act, No. 31 of 1941 Section 109bts (1) (added by Act No. 51 of1956, secticon 30, and amended by Act No. 21 of 1964, section 8) applies the Actto Scouth West Africa and the Eastern Caprivi Zipfel.

Section 1 (definition added by Act No. 51 of 1956, secttion 1 (k)) defines the"Union" to include South West Africa.

-436PART IVIndex to Laws Cited*Administration Emplo~ees' Pension Fund Oid naece, No. 17of 1957Ad;ministration of Justice Proclamation, No. 21 of 1919 Atministration of theRehaboth Com=unity Proclpriation, .No. 28 of 1923 (South West Africa)n:,inistrator~s Legislative Powers Ordinance No. 20 of 1952 Admission ofAdvocates Act, No. 74 of 1964 Admission of Persons to the Republic RegulationAct, No. 59of 1972Admission of Persons to the Union Regulation Act, No. 22of 1913Aged Persons Act, No. 81 of 1967 Aliens Act, No. 1 of 1937 Aviation Act, No.74 of 1962 Banking Act, No. 38 of 1942 Banks Act, No. 23 of 1965 Bantu AffairsAct, No. 55 of 1959 Baatu Education Act, No. 47 of 1953-Bantu Labour (Settlenent of Disputes) Act, No. 48 of 1953 Bantu Trust and LandAct, No. 18 of 1936 Bantu Laws Anendm.ent Act, No. 46 of 1962 Basters ofRehoboth Education Act, No. 85 of 1972 Blind Persons Act, No. 26 of 1968Border Control Act, No. 61 of 1967 "BOSS Act", No. 101 of 1969, section 29British Nationality in the Union and Status of Aliens Act,No. 18 of 1926Coloured Development Corporation Act, No. 4 of 1962 Coloured DevelopmentCorporation Powers in the TerritoryOrdinance, No. 28 of 1966Coloured Persons Education Act, No. 47 of 1963 Coloured Persons in South-WestAfrica Education Act,No. 63 of 1972Comissions Act, No. 8 of 1947 Companies Act, No. 46 of 1926 Companies Act,No. 61 of 1973Companies Ordinance, No. 19 of 1928 Control and Treatment of Natives onMines Proclamation,No. 3 of 1917Crfminal Procedure Act, No. 56 of 1955 Cffminal Procedure Ordinance, No. 34of 1963Customs and Excise Act, No. 91 of 1964 Dangerous Weapons Act, No. 71 of1968 Deeds Registries Act, No. 47 of 1937 Deeds Registries Proclamation, No.37 of 1939 Defence Act, No. 44 of 1957131, 390n129252n, 268-74177, 220-1 1118--23, 27, 70, 276

1824-5 26-711521502829-34, 38, 39,58 109, 386 265 .169, 344 1735-42, 54n, 106n 43-4 69, 71 4, 45-8, 121, 127 15949-53, 146, 222 49, 222-35735n, 38, 54-61, 106n 4762, 64, 246 52, 62-4, 150, 246, 384 63275, 38246n, 200, 224 200, 224-30, 286, 294 11, 65-6, 377 156n, 199n, 350 67-8 67, 68124* Excluding minor amending legislation and government notices.

-i37-Definition of Magisterial Districts Proclar;,tinon, No. 40 of 1920Delegation of Poars Ordinance, No. 21 of 1960 Departure from the Union'Regulation Act, No. 34 of 1955 Deportation of Undesirable Persons from SouthWest Africa-trocla.ation, No. 267 of 1954Dejortation of Undesirable Persons from South West -Africa .froclr-ation, No.148 of 1962Dvelopr-ent of Self-Government for Native Nations in South-West .frica Act. SeeNative Nations Act.Development of Self-Govenrent for Native Nations inSouth .est Africa Atiand.nent Act. See Native NationsAmendment Act.Disability Grbnts Act, No. 27 of 1968 Ea.stern Cap ivi Enactment, No. 3 of 1975Eastern Caprivi Legislative Council Proclamation, No. R. 6of 1972Eastern Caprivi Zipfel Administration Proclamation, No..*47of 1939Education OrdinanceNo. 27 of 1962 Electoral Consolidation Act, No. 46 of 1946Employ.ent Bureaux Regulations Proclamation, No. R. 83of 1972Employment Bureaux Regulations Proclamation, No. R. 323of 1972Fmployment Bureaux Regulations for Namas Proclamation,No. R. 32 of 1973Establishnent of a Coloured Council Ordinance, No. 34of 1961Establishment of an Elected Coloured Council forSouth West Africa Ordinance, No.. 29 of 1966

Establishment of Local Government in Coloured TownshipsOrdinance, No. 35 of 1965Extension of Franchise Proclamation, No. 103 of 1939 (Union) Extra-Territorialand Northern Natives Control Proclamation,No. 29 of 1935 (South West Africa)General Law Amendment Act, No. 54 of 1949 General Law Amendment Act, No.76 of 1962, section 21. See"Sabotage Act".General Law Amendment Act, No. 62 of 1966 Ge~eral Law Amendment Act, No.102 of 1967. General Law A.endment Act, No. 101 of 1969, section 29. See"ROSS Act".Ceeral Law Amendment Act, No. 102 of 1972 General.Law Further AmendmentAct, No. 93 of 1963 Gesetz, 'betreffend Geseillschaften mit BeschraenkterHaftung, 20 April 1892Group Areas Act, No. 36 of 1966 Identity Docu-._ants in South West Africa Act,No. 37 of 1970231-2 69-72, 189 27718n, 276-783-4280-1 278-81, 35911, 12, 167, 168, 282-4 31, 35, 54, 106 85-7, 164, 165, 183n, 189, 233, 234285285-93, 294, 298, 310, 324, 329, 382, 386 294-302, 310, 324, 329, 386 233, 235233-6237-887382199155n 88, 239,331, 35745-48, 153 7n64n16534, 38, 57, 86, 89-94, 109, 117, 166n, 235, 305n, 386, 393, 395

-48-Y:..iLrants RZfulation Act. See Admission of Persons to theUnion Re~ulation Act.i-a-migrants Regulation Aend:-rient Act, No. 43 of 1953 Tiznigrants RegulationA.T: crrent Procla-,ation, No. 30 of 1927(South West Africa)ITrmigrants Regulation Procl.nation, No. 23 of 1924!ykorality Proclomation, "1o. 19 of 1934 Ingome Tax Act, No. 52 of 1970 InEmeTax Act, No. 88 of 1971 Intstrial Conciliation Act, No. 36 of 1937 IndustrialConciliation Act, No. 28 of 1956 Kavango Constitution Proca:aation, No. R.115of 1973 ,a-"go Le&islntive Council Proclamation, No. R.196 of 1970 Kcvango

Nation Registration Enactment, No. 6 of 1972 Lalour Enactmnent for Owahbo,No. 6 of 1972Land 3ank Act, No. 13 of 1944 Land Bank Anendrnent Act, No. 31 of 1969 LegalAid Act, No. 22 of 1969Liquor Ordinance, No. 2 of 19691.Ysters and Servants Proclamation, No. 34 of 1920 (SouthV'est Africa)!'cdical, Dental and Pharmacy Act, No. 13 of 1928 I-ines, Works and .ineralsOrdinance, No. 20 of 1968Mining Law Further Amend ent Proclamation, No. 1 of 1937 Mining TitlesRegistration Proclamation, No. R.90 of 1969 Nama in South West AfricaEducation Act, No. 86 of 1972Ka.caland Consolidation and Administration Act, No. 79 of1972Native AdninLtration Procleation, No. 11 of 1922Native Adx'qinistration Proclamation, No. 15 of 1928 Native Nations Act, No. 54of 1968Native Nations Amendment Act, No. 20 of 1973 Natives (Urban Areas)Consolidation Act, No. .25 of 1945Natives (Urban Areas) Procle-nation (South West Africa),No. 34 of 1924Nalives (Urban Areas) Proclamation (South West Africa),0o. 56 df 1951Newspaper and Imprint Act, No. 14 of 1934 Newspaper and Imprint RegistrationAct, No. 63 of 1971362251, 303-5373n 372135, 261 135n, 261, 35 306-8, 334 306n, 309 3082909595-6, 375-76 97-105 239-40 291n, 3821168, 117, 241-7, 343, 344 3586834, 35n, 54n, 106-14115-17310-17, 332, 348, 382285n,. 318-23 348 10, 13, 17, 73-82, 165, 176, 245, 246, 252, 278,280, 284, 290, 306, 310, 312, 315, 318, 322, 334, 335, 336n, 337, 344, 348, 39373-82324, 329, 331, 332, 333324, 329287n, 293, 301, 324-33, 382 118118-20, 144

Official Secrets Act, No. 16 of 1956Okavanko *Native Territory Affairs Proc!a.w-tion, No. 32 of1937Ovanbo Enactment, No. 4 of 1970 Ovambolhnd Affairs Proclamation, No. 27 of1929 (South West .bAfrica)6anboland Financial Regulations Proclmation, !o. R. 298 .of 1968.eambo Act, No. 2 of 1975 Owambo Constitution Procla,:ation, No. R. 104 of1973 Owanbo Election Procl-ation, No. R. 105 of 1973 Owaimbo LegislativeCouncil Proclamation, No. R. 291 of1968Owambo Legislative Council Salaries and AllowancesProclamation, No. R. 295 of 1968Owambo !.ation Reeistration Enactment, No. 5 of 1972 Peri-Urban DevelopmentBoard Ordinance Pneumoconiosis Cori.ensation Laws Amendment Act, No. 95of 1972Police Proclamation, 11o. 56 of 1921 Police (South West Africa) Act, No. 19 of1939 Population Registration Act, No. 30 of 1950Prisons Act, Proclamation Proclamation Procl mation ProclamationProclamation ProclamationProcl,"ation Proclamation ProclamationProclamation No. Proclamation 400 Proclamation No. Proclamation No.Proclamation No. Proclamation No. Proclamation No. Proclamation No.Proclamation No. Proclamation No. Noclamation No. froclairation No.Proclamation No. Proclamation No. Proclwmation No. Proclaation No.Proclamation No. Prohibited Areas8 of 1959 40 of 1920 23 of 19223 of 1929 (Union) 26 of 1929 196 of 1929 100 of 1.939 (Union) 11 of 1941 235of 1951 (Union) 119 of 1958 (Union)271 of 1959 of 1960 (Republic) 81 of 1964 (South West Africa) h1 of 1965(South West Africa) 205 of 1968 R.89 of 1969 R. 130 of 1969 43 of 1971 (SouthWest Africa) 57 of 1971 (South West Africa) R. 129 of 1971 R. 261 of 1971 R. 8of 1972 R. 26 of 1972 (Republic) R. 204 of 1972 R. 116 of 1973 R. 193 of 1974105 of 1975 Proclamation, No. 26 of 1928h6, lml-8 33480n335, 38n8nBOn 335, 338336-8, 339336, 33980n 3383n6n, 11 129 129 86, 89, 93, 94, 165, 251, 267 130 318 12, 283 11 12 283129 323 10, 202 313, 318n, 321, 323, 334n, 335n 130 35 394 39 88241, 244n 130394 394 240 280 279

346n 336 308 338 275, 3823h0-2

Prohibition of Mixed .arriages Act, No. 55 of 1949 Prohibition of Mixed Tarriages Ordinance, Ho. 19 of 1953 Prohibition of Political Interference Act, 1o.51 of 1968 Prospecting and Mining - Native Reserves South West Africa,Proclamation, No. 42 of 1969 (Republic)Provincial and the Territory Service Pension Act, No. 1h-§f 1969Public Safety Act, No. 3 of 1953 P41lication of Banns A!.r-ndment Act, No. 13 of195 Pilications Act, No. h2 of 197Publications and Enturrtainments Act, No. 26 of 1963 Regulations for theAdninistration of the District ofOwnboland Procleviation, No. R. 17 of 1972Rehoboth Affairs Proclamation, No. 31 of 1924Rehoboth Affairs Proclamation Arendnient Ordinance, No. 27of 1956Rehoboth Gebiet (Acquisition of Land) Proclamation, No. 29of 1929 (South West Africa)Rehoboth Gebiet Affairs Ordinance, No. 20 of 1961Rehoboth Gebiet Affairs Proclamation, No. 9 of 1928 Rehoboth GebietBoundaries Amendment Proclamation, No. 22of 1941 (South West Africa)Rehoboth Gebiet (Further Extension of Laws) Proclamation,No. 77 of 1964Rehoboth Investment and Development Corporation Act, No. 8of 1969Republic of South Africa Constitution Act, No. 32 of 1961Reservation of Separate Amenities Act, No. 49 of 1553 Reservation of State Landfor Natives Ordinance, No. 35 of1967Riotous Assemblies Act, No. 17 of 1956 Riotous Assemblies and Criminal LawAmendment Act, No. 27 of191Riotous Assemblies and Criminal Law Amendment Ordinance, No.9of 1930Rules of Procedure for the Eastern Caprivi Legislative CouncilProclaration, No. R. 7 of 1972Sabotage Act, No. 76 of 1962, Section 21. Sea Shore Act, No. 21 of 1935 SecondGeneral Law Amendment Act, No. 9 of 1971 Separate Representation of VotersAct, No. 16 of 1951 South African Citizenship Act, No. 4h of 199South West Africa Affairs Act, No. 2.of 1922 South West Africa Affairs Act, No.25 of 1969250248-51; 303, 305 85, 86241, 242n, 245, 33

131-2, 376 133-5 7n65, 66, 118,136-45 136-h582n, 3hO, 34551352-5, 356355357252-5, 268, 352, 356352, 356-935735n19, 146-52, 270, 272, 274, 357, 392n, 39 28, 85, 86, 153, 165, 178 396115, 117 256, 259 259118, 256-60279, 359154-7 194291n 85, 86 71, 128, 158-9i668n3, 13, 66, 78,129, 149, 160-163 169, 171, 172-15@, 221, 367-377, 379

-441-South W,.est Africa Affairs f.'cndrent Act, South I-est Africa Affairs AmindmentAct, South West Africa Affairs A!end:.,ent Act,South West Africa(union)South West Africa% of 1954;o. 28 of 19. No. 23 of 1949 No. 55 of 1951Affairs Frocl-aation, -*o. 51 of 1937 Bantu Affairs Adninistration Act, No.South West Africa Constitution Act, No. 42 of 1925South West Africa Constitution Act, No. 39 of 1968South West Africa Constitution Act, 1925, FurtherA.endment Act, No. 38 of 1931South West Africa Native Affairs AdministrationOrdinance, No. 4 of 1955South -est Africa Social Pensions Ordinance, No. 2 of1965South West Africa Teachers' Pension Fund Proclamation,No. 39 of 1931State President's Mining Titles Registration Proclamation,No. R. 90 of 1969Suppression of Co~niunism Act, No. 1h4 of 1950Supreme Court Act, No. 59 of 1959 Territorial Waters Act, No. 87 of 1963Terrorism Act, No. 83 of 1967

Treaty of Peace and South West Africa Iandate Act, No. 49of 1919Undesirables Removal Amendment Ordinance, No. 2 of 1972 UndesirablesRemoval Proclamation, No. 50 of 1920 (SouthWest Africa)Un'awful Organisations Act, No. 34 of 1960 Uran Areas Proclamation. SeeNatives (Urban Areas)ProclamationVairancy Proclamation, No. 25 of 1920 (South West Africa) Walfe Act, No. 5 of1957 Wage and Industrial Conciliation Ordinance, No. 35 of 1952 War PensionsAct, No. 82 of 196T War Veterans' Pensions Act Workmen's Compensation Act,No. 30 of 1941Pn12, 13, 85, 6, i65 7n, 10, 12, 13, 191, 283 .36o, 361toS78, 115, 168-7%176, 313, 321,324,.33,n, 335n,3.12, 36910, 32, 13, 160,162, 165, :69, 171-73, 115-80, 202, 283367n8n, 10, 11, 12, 13, 32, 34, 85, 86,160, 162, 163, 16h, 165, 167, 169, 17180, 202, 2M1, 235,265, 367283362-632h, 43, 83 131684, 72, 85, 87, 118,157, 181790, 201,203, 205, 233, 338 191-2, 362193-41, 10, 85, 87, 128, 15, 156, 195-201,233, 35110, 202360-6318n, 274, 276, 310, 360-63181, 185, 203-5364-6 261261-7, 39 206-11212-13 214-19, 265

P!JT iVIndex of Cases CitedCase

Eink v. Cormssioner of Police, 1960 (3) S.A. 65 (T) Fu1 v. S.A. Eailvays &Harbours, 19h9 (1) S.A. 630 (S.W.A.) A'lery v. Minister of the Interior, 1955 (1)S.A. 36 (T) Harris v. MiniSfter of Interior, 1952 (2) S.A. 428 (A.D.) LegalConsequences for States of the Continued Presence of South Africa in Namibia,Advisory Opinion ICJ 1971 !.tdikizela v. Minister of Justice and Minister ofPolice (unreported, T.P.D.M4.25/70)R. v. Akkermcnn, 195 (1) S.A. 195 (B.W.A.) Rex v. Christian, 1924 A.D. 101 R.v. Neibas, 1958 (1) S.A. 319 (S.W.A.) R. v. Ntoni, 1961 (3) S.A. 50T (S.W.A.) R.v. Offen, 1935A.D. 4 R. v. Sisulu, 1953 (3) S.A. 276 (A.D.) Shityuwete v.Conrmissioner-ofPolice, 1968 (settled out of court)Sobukwev. Minister of Justice, 1972 (1) S.A. 693 (A.D.) South West Afri.csCases, PFreliminary Objections, ICJ Judgment 21 Dec. 1962South West Africa, Second Phase, ICJ Judgment 1966 Stanton v. Minister ofJustice, 1960 (3) S.A. 353 (T) S. v. Alexander, 1965 (2) S.A. 818 (C) S.*v.Arenstein, 1967 (3) S.A. 366 (A.D.) S. v. Bock, 1968.(2) S A.'658 (A.D.)S. v. Fazzie, 1964 (h) S.A. 673 (A.D.) S. v. Naicker, 1967(4) S.A. 21h (N) S. v.Yoke, 1962 (3) S.A. T1 (T) S. v. Tuhadeleni, 1967 (4) S.A. 511 (T), aff'd 1969 (1)S.A. 153 (A.D.)Universal Distributors (Pty.) Ltd. v. Dickson, 1949 (4) S.A. 331 (S.W.A.)Van der'Linde v. Calitz, 1967 (2) S.A. 239 (A.D.) Van Rooyen v. S.A. Railways& Harbours, 19h9 (1) S.A. 61o (S.W.A.)Wood v. Ndongwa Tribal Authority, 1971 (3) S.A. 557 (S.W.A.), rev'd, 1975 (2)S.A. (A.D.)page. 135 18072n 10, 179n 5, 9, 166, 3819n, 335n200179nTn7n179n 181n, 185, 186 200T2n, i88 166, 169, 178166, 169, 178 135n 157181n 8n, 9, 180, 252, 25h-5, 268, 269,270, 273 199 189181, 186, 205 7n, 190, 198, 201, 228, .018n, 180n, 25h, 269n 1618082n

r.F T TVSu.p:Itct Th*exActs of Parli-i~ent Aebtinistrator AifricansAgreement dated 17 August 1923. ArjendmentsANC (African National Congress)See Rehoboth Gebiet

Apartheid. See Separate Development, Homelands,"Population Classification", Racial Discrimination AppealsArrestAuthorities. See Bantu Administration and Development,"Homelandsl NativeNations Act, Urban local jthoritiesBaningBa 4u Administration and Development, Department and Minster of7-8, 9, 10, 11, 17, 52, 76, 173, 179, 180, 220, 283, 4OO171, 173, 176-7, 220, 231, 232, 237, 238, 2514, 256, 261, 262, 268, 274, 275,.276, 295, 360, 393,: 40017, 19, 21, 28, 2934,: 57, 72, '73-82, 88; 89,' 92, 93, 102., 105, 117, 1142, 158,168-70, .176, 17-T, 181, 199,. 207, 21,. 215, 21-19, 239, 261, 262,.263-4, 265,266, 267, 2.75, 285-93, 29., 299, 310-17, 32h-33. 331, 335 , 336-8, 3393551, 358,359, 362-3, 366,. 382, 388-90, 393, 3977, 1:7, 2T 182, 186, 187,- 203, 4205.19, 22,,23,'140, 13T, 139, 1142, 276, 2TT, 291, 3147133, 135, 327, 345, 3147, 365197, 225, 228 182-83, 187-89, 22T 28, 29, 30, 31, 32, 33, 81, 82, 88, 97, 167,169, 176, 279, 307, 310, 311, 312, 313, 316, 318, 319, 320, 321, 322, 323, 324,325, 326, 328, 329, 332, 333, 33h, 335, 143, 344, 346

-41 1n:antu Affairs Co:.ission Fantustans. See "Home] knds". Basters. See: RehobothGebiet. "3OSS" (Bureau of State Security) Burden of Proof. See Preswnptions.BushmenCe,.orshipChiefs and HeacdmenChurchesCitizensColoured, Rehoboth and !Na.-a Relations, Department orMinister ofColouredsCo:,rxnist Party of South Africa Com:paniesCongress of Democrats Contract, Employment. See Labour Control Officer. SeeNative Commissioners Council for NamibiaCourts.See also Magistratea, Native Conmissioners,Supreme CourtCr5.e, Criminal*2845, 121, 122, 12h78118-20, 31. , 136-45, 183, IE971, 80, DP, 278, 279, 280-1, 06, 307, 318, 319, 321, 32, 337, V;:6, 3h7, 1h,49350, 35129, 30, 32, 33, 39, 40, 42, 57, 59, 82, 106, 109, i10, 111, 136, 137, lh., 14-4, 310,325, 345, 360-2 71, 86, 92, 127,

158-9, 166, 276-7 35, 36, 37, 39, h2, 50, 51., 55, 56, 60, 61, 1o6, 107, 1O8, 113,1.1., 115, 16, 147, 14919, 49-53, 514-61, 78,89, 137, 11$2, 207, 222-3, 233-6, 237-8, 239, 240, 285, 294, 313, 386, 388-90,394, 39518649-53, 62-4, ih6-52, 215,3731861, 384, 385 45, 46-17, 66, 76, 81, 97, 98-100, 101-05, 139, 177, 179, 181, 183,188, 196, 200, 225, 226, 227, 228, 229, 270, 274, 319,. 321-22, 31.7, 350, 360,362, 396, 398 76, 87, 94, 99, 101, 103-, 105, 122, 123, 130, 137, 157, 184, 195-201, 203, 22h-30, 256-60, 27, 275, 276, 291, 332, 349, 361, 382

Dza.mras, Du arralnd 79 290t 213, 299DnCcrous Weapons 89, 9?, 156, 196,199, 257, 259, 3);6, 350, 357Defiance (of Unjust Laws) Campaign -133Departure ",.69-72, 90, 189, 310,350DepOrtation. See also Removal :18, 20, 21, 23, 26,276-7, 303-h, 305, 323, 327, 332, 360-3 Detention20, 133, 135, 197,200, 3145, 347, 365 Double Jeopardy 155, 197,201Eastern Caprivi Zipfel 7, 9, 10, 11-12, 13,73, 167, 168, 173, 180, 185, 278-Al,282-4, 298, 299,322, 359Education 29-34, 35-42, 5c-61,106-14, 206, 316,325Elections 85-87, 178, 179,233-236, 338Emergency Regulations 133-5, 345-51Espionage. See Official Secrets Act"Europeans". See Whites Evidence. See Presumptions, Trials Executive Councils.See Homelands Expropriation 36, 52, 53, 54, 55,58, 78, 107, 109,116, 150, 152, 222 Farms 311, 314, 364Financial Rearrangements. See Rearrangements Firearns. See DangerousWeapons Fishing 193-4, 384Flogging and Whipping 41, 60, 82, 112, 226,260, 351Foreign Agents 121-8Foreign Investment 63, 64, 245, 292,373, 384, 399

Gaze Reserves 2h3, 246, 30-41,342Gatherings. See Meetings German Law 64, 68,151, 271,283, 354, 366Govenor-General. 10, 13, 168, 1"7,202, 3148Hetero, Hereroland 73, 298, 299

-446-I,entity Docur>ents. See also Passes idle and Disorderly or UMdedirable Persons1Liiration Import DutiesIVports Interior, Departxnent or M4inister ofInternational Court of Justice Job Reservation. See L.bour Justice, Department or.inister of Kaokoveld kavanSo LabourLand TitleLanguages LawLeguslative AssemblyLegislative LiquorCounils. See "Homelands"3, 10, 13, 31',33,34, 73-82, 93;i115, 117, :68, 169, 233, 241, 243, 274- 27881, 286, 290, 291,292, 294, 298, ýo, 306-08, 30.9, 310-17,318-23, 331, 334, 335336-38, 339, 340-42, 343-4, 345-51, 359,363, 4oo89-94316, 325, 327, 333,357, 364, 36618-23, 26-7,.177, 310, 36265, 6665, 66, 137, 138, 144 18, 20, 21, 26, 69, 72 89, 91, 118, 19,120, 136, 138,.141,143, 1455, 9, 25, 44, 84, 166, 169-, 178, 213, 384,38597, 101, 182, 183, 184 187, 188, 201, 349 73, 298, 299 73, 285, 286, 299, 306-308, 309, 313,322, 334.130, 133, 257, 259, 261-67, 275, 285-93,294-302, 327, 361,364, 391, 394, 397-99 67, 77, 78, 115, 117, 147, 151, 152, 168, 170,'244, '47, 270,274, 316, 324, 329,35636, 40-1, 55, 59-60, 82, 107, 111-12, 173,306, 337

2-13, 82,392, 395 171, 172, 173, 176, 178, 179, 202, 220,222, 235-ý'88, 239-40, 320, 324,325, 326, 331, 333,357

L cal Aut!.rities. See Urban Areas "]ocat ions, Na~tive"Magistrates14pndate Narriaee. See also V.orienMOdium of jIeetinesMilitary I inerals 14iningMissions. ez.asInstruction.See LinguagesSee ChurchesNative Adminstration or Affairs. See Bantu Adrinistration and DevelopmentNative ComissionersNative Reserves. See "Homelands" Natives. See Africans Odendaal PlanOffenses. See Particular Legislation, Crimes Okvaneo. See Kavanso Ovanboland,OvambosPAC (Pan African Congress)Parliament. See South African Parliament Pass Laws and Passes331, 320, 321, 325, 326, 330, 331, 365 22, 102, 173, 197, 252, 256, 268, 269, 270,271, 272, 273, 293, 302, 310, 311, 316, 32," 3211, 327, 130, 317, 352, 353, 355,356, 357, 364, 365, 3665, 6, 9, 10, 28, 88, 178, 202, 283 2M.8-49, 250-51, 303, 305, 319, 322182, 183, 184, 187, 169, 259, 317, 345,31912h, 133, 177 67, 68, 241-7, 33115-16, 117, 146, 151 211-7, 275, 292, 327 31.3-1., 39131, 34, 78, 89, 91, 93, 106-11, 115-17, 285, 2911-302, 35, 386287, 288, 293, 291, 296, 297, 298, 302, 310, 311, 318, 319, 322, 3P7, 315, 316,31.7, 3h.9, 35173, 78, 92, 115, 117, 11.6, 162, 171,.178, 272, 31h.-15, 31.2, 357, 367, 369, 374,39380, 285, 286, 298, 299, 313, 322, 335,. 336-38, 339, 31.0, 3h5-51, 351 182, 186,187, 203, 2053, 103, 310-17, 320, 326, 327, 332, 31041, 31.5, 316, 319, 350, 382rr-,clauration

-448-Passports. See InrmiGration, Dieportation Penuic.ns. See also Social benefitp.ymcntsPermits. See Pass Laws Police"alice rone". See Red Line, "Population Classification".White area .ce also Identity Documents

PresumptionsPrisonsProclaimed AreaProhibited Persons ProvincesPunishment. See particular Legislation, Flogging andWhippingRace Classification. See Population classification,Recial discrimination Racial Discrimination"Rearrangements", legislative, administrative andfinancial"Red Line" RegistrationRehoboth GebietReligion. See Churches24, 25-, 30, 131-2, 206-] I, 212-13127, 129, 138, 141, 183, 196, 197, 200,224, 256, 310, 311, 332, 3117, 3h9, 351, 364, 365, 389, 39T18, 21, 25, 43, h4, 83, 84, 212, 213, 305, 335, 3i6, 395 18, 69, (2, 94, ll, 123,124,126-27, 157, 184, 187, 189, 195-96, 198,-314, 316, 330, 332, 3149, 350, 366130, 197, 200-201 287, 288, 291, 295, 296, 327, 332 18-23, 224,303 18-20, 22,29, 32, 171, 368, 37624, 25, 26, 38, 43-4, 57, 83, 8h, 90,.91, 102, 109, 117, 130,132, 135, 165-6, 206-ii, 212-13, 214-19, 248-51,303-5, 32h-5, 32930, 385,. 3e6,387, 388-90, 391, 392, 394, 395, 396, 397-94, 66, 96, 160, 162, 163, 171, 178, 221, 245, 355, 367-76, 377-81246, 34o, 35467, 89--90, I18-120, 139, 144, 178, 233, 235-6, 244 8, 35142, 78, 89, 91, 146-52,180, 239-40, 21T, 252-5, 268, 285, 290, 352-5i 356-8, 394

-"9-Removal of Persons. See also DeportationSchools. See Education Searches and SeizuresSegregation. See Separate Development "Self-governing areas". SeetiHomelands"Separate Development Service Contract. See Labour "Sobukwe Clause" SocialBenefit Payments. See also PensionsSouth Africa Bantu TrustSouth African Comiunist Party South African Constitution. See Republic of SouthAfrica Constitution Act South African Defence and Aid Fund South AfricanGovernment GazetteSouth African ParliwnentSouth West Afxica, High Court of.South West Africa DivisionSouth West Africa Official GazetteState PresidentSee Supreme Court,Stock (Animals) Strfkes. See Labour Subsidies19, .2. 23, 276,

277, 287, 283-89,291, 293, 295, 296, 297, 299, 3500, 301, 303, 323, 326, 327, . 332, 333, 357,360* 63, 36513.. 115, 22h-25,32 , 353, 36h-6538, 322, 39318725, 4f4, 83-4, 2r,6-11,21h-19, 388-9077, 169, 170, 2h7,334, 335, 343, 344,3621861868, 12, 17, 170, 173, 179, 180, 245, 4oo16o, 16h-6, 171, 172,173, 176, 178, 202,25h-5, 359, 368,-4003, 14, 8, 12,13, 170, 179, 180, 2145, 3O,1.0010, 11, 13, 28, 43, 52, 13, 75, 76, 78,31%80, 82, 88, 89, 93W.133, 135, 137, 11, 150, 151, 153, 160, 162, 173, 176, 3.79, 181, 191, 194, 203,212, 233, 235, 2h4, 275, 279, 290, 318, 319, 321, 322, 325,327, 336-7, 348, 359 315, 356, 364, 365, 36631, 32, 33-4, 36,38-9, S54-5., 58, 76, 81, 96,97, 106, 107, 110,129, 222

-450-Siapre,;e CourtSupremse Court, Appellate Division Supreme Court, South W.est Africa DivisionSWANLA (South West African Native Labour Association). 4ee LabourSWLPO (South West Africa People's Oreanization) TakesTortureTownship. See Location Trade Unions. See Labour TreasonTrialsTswanaUnions. See Labour United Nations Resolutions Universal Declaration of Hu=anRights Urban Areas. See also Locations, Native Nations Act,Urban Areas Procla.mationUrban local authorities. See Urban Areas Proclamation Veterans. See WarPensions Act and War Veterans'Pensions Act Walvis BayWhipping. See Flogging and WhippingWhite Area

IWitesWomen. See also Vrriage19, 74. 97, 135, 156, 191-92, 197 19, 23, 76, 25 i-55 12, 167, 173, P25, 283, 319,352, 35820152, 76, 149, 150, 1i 8, 293, 320, 371-5, 377-9, 380-1, 33420085, 87, 154, 196 '123, 128, 155, 157, 184, 190, 197, 201, 22h-30, 270 783, 5, 362, 4002320, 324-338, 65, 66, 86. 179170, 171, 172, 176, 2946, 285, .2e6, 287, 290,,291,'295, 296, 300, 313, 314, 319,322, 331, 340, 342, 38221, 26, 38, 74, 76, 80, 65-7, 89, 91, 101, 105, 109, 130 147, 164, 165, 171, 176,237, 273, 27k, 279, 285, 291, 299, 303, 305, 320, 322, 325, 356, 357, 358, '361,388-90, 392, 394,,397, 399 27., J3, 4i, 60, 67, 87, 113, 158, 206, 2o8,- 19, 28T,291,295, 299-300, 303-5, 331, 333, 391