Question of Namibia - Status of Walvis Bay (Legal Status and Background Data - Claims by South Africa)

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Title items-in-Africa - Question of Namibia - status of Walvis Bay (legal status and background data - claims by South Africa)

Date Created 09/06/1976

Record Type Archival Item

Container S-0902-0002: Peacekeeping - Africa 1963-1981

Print Name of Person Submit Image Signature of Person Submit UNITED NATIONS NATIONS UNIES

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INFORMATION CENTRE—DAR ES SALAAM INTEROFFICE MEMORANDUM

TO.- The Secretary-General Date

FILE No.:_ V - • . . FROM: Keith Beavan : • " • :

SUBJECT: NAMIBIA]!! MBETINgS.'IFr TAH2AITIA

1) The following three points, for obvious reasons, will not be reflected in substance in the reports of the mission of the Council for :"".:" ";:':"Hamibia to Tanzania, The first two points were made by President ITyerere •- .. - :in.the consultations; the third by the Foreign Minister, The Foreign '•".."• .Secretary of SWAPO was at both meetings. He made no comments on the remarks, 2) a. President ITyerere said on^jhe question of ffalvis Bay that any decision on tSe matter must be made by SWAPO and it was not up to the UN or the OAU to make any compromise on the question. However, he, personally_felt : that if OTAPO-pressed on with this problem of \7alvis Bay indepjgncignce ror jMamipia, iie, personally vyould >c __ and_deal vath_felvis Bay later. He cited the facts that India became independent witEout u-oa, tnafUS forces remained in G-uantanamo in Cuba and that Hong Kong and Macao remained under foreigners, b. The President said while he could not tell SWAPO what to do in : the talks with the Five, if he were S\7APO he \vould exhaust the avenues of the talks on.the basis of Security Council resolution 385, while putting pressure on South Africa from the military side, before resorting to other means of pressure through the.-United nations, such as calls for a special session and demands for economic'-.sanetions, , c. The Poreigji Minister said that while he was speaking hypothetically and did not for see such a scenario, if there was .'conflict about the_Special Representative for Namibia reporting"to T;he Secretary-General or to the Council 'foirNamibia_the_choice~should~'be' left"compietely~ to l;he~Secretary- : Qeneral and -If it^was proved that_the'Touncij: for Namibia was an obstacle to the independence of Namibia then it should cease~^o function, " ~" MKP/JEB 2 March 1978

LEGAL STATUS OF WALVIS BAY (Summary of the opinion of the Legal Office)

Walvis Bay and South West Africa (Namibia) became colonial and non-self-governing territories by virtue of their acquisition by Great Britain and Germany respectively between 1878 and 1884. Both entities have an inalienable right to decolonization together as an integral whole. The principles of General Assembly resolution 1514 (XV) on the granting of independence to colonial countries and peoples, including those of the Charter of the United Nations, aw n regard to non-self- goyerjiing territories and are clearly applicable in this case . In this connexion, it should be recalled that in resolution 1514 (XV) the General Assembly stated inter alia that "any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations" . The result of the arbitrary division between two colqnial powers of what was geographically and historically a single territory was that Walvis Bay was artificially separated from the rest of the territory. It is, therefore, clear that Walvis Bay was not part of the German protectorate of South JWest Africa which became a mandated territory under the administration of South Africa in 1922. On the other hand, it is equally clear that South Africa has recognized the necessary unity of the whole^ territory by treating Walvis Bay as part of South West Africa for all purposes (administrative, judicial, electoral, etc.). Thus Walvis Bay never in fact became an integral.part.of _So_uth__Africa_ a.nd_remained_a jpolony^jadministered as part of the mandated territory of South West Africa. By developing Walvis Bay as the most important component of Namibia's infrastructure, a pattern of mutual dependence, upon each - 2 -

other, of the territory of South West Africa and Walvis Bay, has irrevocably emerged. The rationale which justified South Africa's treatment of Walvis Bay as an integral part of SouthJWest Africa (Namibia) for over half a century should continue to be relied upon to maintain the de facto integration of Walvis Bay into Namibia thereby maintaining a viable single territory. An attempt by South Africa to detach Walvis Bay from Namibia would result in the disruption ofsocio-economic unity and territorial integrity of Namibia, and would be a breach of contemporary principles of international law governing the granting of_ independence to colonial peoples. The legislation (dating from 1922) by which South Africa systematically integrated Walvis Bay into the mandated territory of South West Africa may be considered as having been entirely consistent with the duty it assumed to administer and develop the mandated territory itself on the basis of the concept of sacred trust. When, after 1945, the concept of sacred trust was extended to include all other colonial territories such as Walvis Bay, the basis for an international obligation upon South Africa to administer and develop the two mutually dependent areas under the concept was even more complete. Accordingly, an attempt by South Africa now to invoke a domestic legislation to revert Walvis Bay to its pre-1922 status would a derogation of its international obligations under the sacred trust and also contrary to public international law. NATIONS

Dear Mr. Secreta neral, Upon your request, I have the honour to provide you with the legal opinion on the Status of Bay. This opinion, however, is not in the public domain and was given only to the Commissioner for Namibia, Mr. Ahtasaari. I wish to draw your attention particularly to pages 14-17 (paragraphs 35-42). . • I remain at your disposal for further discussion or clarification, if need be.

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AS REQUESTED , SUITE :A VOTRE DEMANDE • g: NOTE AND RETURN NOTER ET RETOURNER ^•g^^;^^:^ ' "" '"•" « . , . . hE3l j~sU. ^ 29 September 1977 \ " . .•••'.

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LEGAL STATUS OF WALVIS BAY LEGAL STATUS OF WALVIS BAY

Contents

Paras . Pages

Part I. Historical background 1-13 The period of colonization of South West Africa and Walvis Bay and the placing of South' West Africa under C Mandate 1-13 1-5 South West Africa in relation to the United Nations until the termination of South African Mandate lU-17 5-6 South West Africa following termination of the Mandate 18-3U 6-13 (a) establishment of the United Nations Council for Namibia and the ICJ advisory opinion 18-19 6-7 (b) the position of South Africa vith respect to Walvis Bay 20-25 7-9 (c) the position of OAU re: Walvis Bay 26 9 (d) the statements of SWAPO re: Walvis Bay 27-28 10 • (e) the discussion and decisions at United Nations meetings and conferences re: Walvis Bay 29-3U 11-13

Part II. Analysis

Part III. Summary and conclusions 17 *s^^ ^c^-r^^^

LEGAL STATUS OF WALVIS BAY ; ; . » t - ! Part I. Historical 'background • ..

* ' • The period of colonization of South West Africa and Wai vis Bay and .the, placing of South West Africa under C Mandate 1. Historical records indicate that Walvis Bay was occupied by Namas vhen the first European explorers reached Africa in the late fifteenth century. Owing to the forbidding nature of the so-called Skeleton Coast of Namibia, Walvis Bay was largely ignored until the eighteenth and nineteenth centuries when it became a regular watering stop for whaling vessels heading for Antartica. It is said to derive its name from earlier reference as "Whale Bay" or Port, hence Walfish Bay and currently Walvis Bay. 2. In 1878, Walvis Bay was annexed by Great Britain when a British Commander>R.C. Dyer, on board his British ship, the Industry, in the name of the British Queen, took possession of the port and station of Walvis Bay and - of certain adjacent territory. This annexation of the Port and Settlement of the Walvis Bay was confirmed by-the British Proclamation of 12. March 1878,— 2f On Ik December of the same year, the Queen issued Letters of Patent— for the annexation of the Port and Settlement of Walvis Bay,including territory surrounding the area,to the British colony of the Cape of Good Hope. 3. Six years later, acting on the said Letters of Patent, the Cape Colony legislature passed its Act No. 35 of 22 July 1881*,— providing for the annexation of Walvis Bay. The actual annexation was undertaken by the Proclamation of 7 August 18814 issued by the Governor General of the Colony.

U, The year l88U(is well known in history as the period of the "scramble for Africa" by the European powers. Thus not only the British but also the Germans were active in the area under discussion acquiring territories and

I/ 69 British and Foreign State Papers (BSP)1177 2] 70 British and Foreign State Papers (BSP) 1*95 3/ 75 British and Foreign State Papers (BSP) 1*07 - 2 - extending spheres of influence. Accordingly, in 188U, the Germans proclaimed a protectorate over the remaining area of South West Africa not nnn^x^d by r the British. The southern "boundary of Walvis Bay later "became a subject of • dispute between the British and the Germans. . W 5. The boundary dispute was settled in- 19H by an arbitration.—' Except the Port and Settlement of Walfish Bay annexed by Great Britain with the southern boundary determined by the said arbitration, the rest of South -West Africa remained under the German Protectorate. 6. South Africa became a Union in 1910. By Proclamation No. 12 of 1915,— following the occupation of South West Africa by the Government of the Union of South Africa during World War I, the Union Government extended to Walvis Bay all the martial law and regulations applicable to the South ...- West African Protectorate "for the better administration of...Walvis Bay on account of its contiguity to the Protectorate." 7. With the termination of the First World War in 1919 and under the Treaty of Versailles, Germany relinquished powers over its colonies including South West Africa, which was made a C mandate territory to be administered by the Government of the Union of South Africa as part of its territory, under the supervision of the League of Nations. 8. On 1 January 1921, the military Government of the Union was-with- .--' drawn from South West Africa and replaced by an Administrator. Thus Sjojith Africa began administering South West Africa as stated above. 9. In 1922, the Parliament of the Union of South Africa passed the South West African Affairs Act (Act No. 2U of 1922) which included provisions relating to Walvis Bay as follows:— . ...-..: : "Administration of and legislation for Walvis Bay as if it ' were part of the Mandated Territory . . . "1. (l) From a date to be fixed by the Governor-General by proclama- \ tion in the Gazette (which date shall also further be notified thereof) the port and settlement of Walvis Bay which forms part of the province

]i/ See the Award of Don Joaquin Fernandez Prida, Arbitration in the matter of the Southern Boundary of the Territory of Walfish Bay, Madrid, May 23, 1911, in UNRIAAj_Vol. XI, 263-308.

5/ Laws of South West Africa (1915-1922),p. 72 (A.J. Watters, ed.). 6/ Laws of South West Africa (1915-1922), Vol. I, p. 10 (H.E.G.Rosenow, ed.). - 3 -

of the Cape of Good Hope shall be administered as if it were part of the mandated territory and as if inhabitants of the said port and settlement were inhabitants of the mandated territory; and I ^i- r. .•}'•''.!' 3 conferred upon the Governor-General by section two of Act No. Vj of iDBl* of the Cape of Good Hope to repeal, alter, amend or modify any law in force in that port and settlement and to make new laws applicable thereto may be delegated by the Governor-General to 'the Administrator of the mandated territory to the intent that the said Administrator may, by the repeal, alteration, amendment or modification of laws and the making of new laws, bring the laws in force in that port or settlement into conformity with the laws of the mandated territory.

(2) Every proclamation by the said Administrator making such a law and every regulation made by him in respect of the said port and settlement shall be deemed to be sufficiently promulgated when published in the Official Gazette of the mandated territory.

(3) Every such proclamation or regulation shall be laid before Parliament as if it were such a proclamation or regulation as is referred to in section two, or three of Act No. Up of 1919-

Any Act of Parliament or proclamation by the Governor-General, passed or issued after the date fixed as aforesaid, which is in force or which may come into operation in the mandated territory, shall, as • long as and to the extent to which it is in force in the mandated territory, be in force also in the said port and settlement, unless Act or proclamation otherwise provides. -.••'• (5) As from the date fixed as aforesaid the said port and settlement shall for all Judicial purposes be regarded as forming part of the mandated territory and not as forming part of the province of the Cape , of Good Hope."

Two relevant proclamations were made in the same year by the Governor-General of South Africa: by Proclamation No. 1^5 of 22 September 1922^7-/ the Governor- General transferred the administration of Walvis Bay to the territory of South West Africa and delegated all his law-making powers vis-a-vis Walvis Bay to the Administrator of the mandated territory; and by Proclamation 30 of 2 October n / 1922— the Governor-General declared that (i) "the said port and settlement of Walvis Bay shall be deemed to •• •• ' " i * -_•••- form portion of the District of Swakopmund;" (ii) from 1 October 1922 all laws in effect in Walvis Bay were repealed and substituted by the laws then "existing and applied" in the mandated territory; ' "

7/ Laws of South West Africa (1915-1922), supra note 5, at p. 56.

Of Laws of South West Africa (1915-1922), supra note 6i'at pp. '609-611. ' - l* -

(iii) all laws issued in the future by the territorial Administrator should apply in Walvis Bay unless their operation there was expressly excluded; " ••.-'••» i f (iv) suits and proceedings pending in the magistrate's court In Walvis Bay should be regarded as"removed to the magistrate of the District of Swakopmund and those pending in the Cape Provincial Division of the South African Supreme Court should be regarded as pending in the High Court of South West Africa; (v) licenses hitherto issued by Walvis Bay (provincial or South African) authorities should thereafter be issued (or renewed) by, and fees in connection therewith be payable to, the corresponding territorial authorities; and (vi) "all taxes, duties, dues and revenues of every kind arid nature" payable within Walvis Bay to the Union or provincial government should instead be payable to the South West African Administration. 10. During its meetings in 1922, the Permanent Mandate Commission of the League of Nations reviewed the reports from South Africa regarding the administration of South West Africa. As reported in its minutes,^- "The Commission took cognizance of the fact that the part of the mandated territory which was known as Caprivi Zipfel had, for ge6- graphical reasons, been detached from the general administration of the territory and was administered under the Governor-General for • South Africa. The Commission also noted that the territory of Walvis ' Bay had been treated as if it formed part of the mandated territory, whereas it was not in fact, included in that territory." 11. In 1925, the South West African Constitutional Act (Act No. 1*2 of 1925))— contained the following section 1*3 entitled "provisions 'as to Walvis Bay": "Notwithstanding anything to the contrary contained in any law, the port and settlement of Walvis Bay shall be deemed to form part of the territory for the purposes of this Act. 12. In 1926, Government Notice No. 1*1— drawing and naming the boundaries for the first election in the mandated territory, held under the 1925 Constitution above, described the electoral division No. 9 of South West

9_/ League of Nations^, Permanent Mandates Commission, Minutes III, p.325 (Annex 13). 10/ Laws of South West Africa (1923-1927), Vol.11, pp.2-9U (R.E.G.Rosenow, ed. ll/ Laws of South West Africa, 1926, p. 36U (published by the.Administrator of South West Africa). - 5 - "

Africa, Swakopmund, as including Walvis Bay. This was consistent vith the earlier provisions of Section 1 of Proclamation Ho. 30 of 1922 which Md made r- Wulvia Hn.y part of the District of Swakopmund (see ahove para. 9). Since then Walvis Bay was included in a South West African constituency.' 13, In 191»U, there was an .amendment to the 1922 South West African Affairs Act. By Act No. 28 of 19M.,—' subsection l(M of the 1922 Act was r amended to make proclamations issued by the Governor-General of South Africa or any Act of the Union Parliament effective in the mandated territory of South West Africa, applicable to Walvis-Bay. The amendment itself read as follows: "Any Act of Parliament or proclamations by the Governor-General, passed or issued after the date fixed as aforesaid, which is in-force1'Li or may come into operation in the mandated territory, shall, as long as and to the extent to which it is in effect in the mandated terrjL- tory, be in force also in the said port and settlement /Walvis Bay_/, .unless the Act or the Proclamation otherwise provides." < South West Africa in relation to the United Nations until the termination of South African Mandate >:or'1l!! ' lU. After the dissolution of the League of Nations and the inception of the United Nations in 191*5, the Government of South Africa approached the United Nations with the request to incorporate South West Africa into the Union.— By its resolution 65 (I) of lU December 19^6, the General Assembly rejected the South African request and recommended that South West Africa be placed under trusteeship. lU/ 15- By its letter dated 23 July 19'»7,— South Africa responded negatively to the decision of the United Nations requiring SoutW'Africa to administer South West Africa under the trusteeship system and refused to enter into a trusteeship agreement with the United Nations. However, the Government was willing to report but only under the mandate system while seeking means of incorporating the territory into the Union.

12/ Laws of South West Africa, 19UU, Vol. XXIII, p. 131*.'' ' '

13_/ See GAOR, 1st session (2nd part), Fourth Committee, pp.231-235 (A/123). I1*/ See GAOR, 2nd session, Fourth Committee, pp. 131»-135 (A/331*). - 6 - . •

16. On 11 July 19U9 the Government informed the United Nations that it would discontinue its reports with respect to the administration of South ',.>st Africa.-- In the same year, South Africa passed the South West. Africa k Affaira Act (Act No. 23 of 19^9) — which provided for closer association of the territory with, the Union by .giving the territory six .elected representatives in the Union House of Assembly and four in the Senate. This Act repre- r sented the complete refusal by South Africa to link South WesJ, Africa to the United Nations in any manner. The background to the dispute between the United Nations and South Africa was thus set. , 17. In December 19^9 > the General Assembly of the United Nations decided to seek an advisory opinion from the International Court of Justice to clarify the legal status of South West Africa. This set the stage of the 1950-1960, and the 1960-1966 legal disputes and advisory opinions of the Court in the South West Africa Cases which led to the decision of the United Nations General Assembly to terminate South African mandate in October 1966 (resolution (XXI)). - - ' •-;

...... i South West Africa following termination of the Ma-ndate (a) establishment of the United Nations Council for Namibia j and the ICJ advisory opinion^ • 18. In 1967> following the termination of the South African mandate over South West Africa, the United Nations decided to establish a United Nations Council for South West Africa (renamed United Nations Council for Namibia since 1968) and to entrust it with certain powers and functions, including the administration of the territory until independence.17 — / .

!§/ See GAOR, Uth session, Fourth Committee, Annex, pp. 7-8 (A/929).

l6/ Laws of South West Africa, 19^9, Vol. XXVIII, Part I, p. 170. 17_/ GA resolution 22U8 (S-V) of 19 May 1967. For a summary of the functions of the Council, see GAOR, 31st session, Suppl. No. 2U (A/31/2U), Report of the United Nations Council for Namibia, Vol. II, pp.;'2-3. - 7 -

19. Following repeated refusal by South Africa to vithdraw from Namibia as requested by the resolutions of the General Assembly and the Security Council, the Security Council, by its resolution 28U (1970), 'requested an , k advisory opinion from the International Court of Justice on the legal consequences for other States as a result of the continued presence of 'South Africa Ifi/ in. Namibia. The Court gave its 'advisory opinion of 21 June 1971,—' which was accepted by the Security Council in its resolution 301 (1971). . i (b) the position of South Africa vith respect to Walvis Bay 20.' In the first communication from the Union of South Africa to the United Nations on 17 October 19U6,-^- it was stated, with respect to the geographical location of the Mandated Territory of South West Africa, that "the Territory known as Walvis Bay (39^ square miles—i.e. 96,867 hectares) which is an integral part of the Union" was located in the west of South West Africa. • i . ^ • i, - This position was taken by .the Government of South Africa also in its later enactments and publications.—I20/ n article 1 of the 1961 Constitution of South Africa, defining the constituent territories of the Republic, there was no mention of Walvis Bay, either as a detached enclave of the Cape Province or of the Republic. 21. In a letter dated 27 January 1976, addressed to the UN Secretary- General, the Permanent Mission of South Africa transmitted a document entitled "South West Africa Survey, 197V. The document had the following information relevant to Walvis Bay: It gives the total area of South West Africa (Namibia) as 82^,269 km (318,261 sq.mi.) and adds the following footnote to th'e figures:— "Including the area of Walvis Bay (112U kmO ) which is part of the " Republic of South Africa as a result of the area's proclamation..as ;. a British Crown Territory in 1878, and subsequent annexation to the Cape of Good Hope in 188U. Certain islands along the coast of South West Africa are also part of the Republic of South Africa." The claim that Walvis Bay is part of South Africa is also made in later documents op/ submitted by South Africa. ==•'

18_/ See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council resolution 276 (1970), Advisory Opinion, I.C.J. 1971 Reports, p. 16. 19/ See GAOR, 1st session (2nd part) Fourth Committee, (A/123) , para. 20. 20/ See, e.g., "State of South Africa", Economic, Financial and Statistical Year-Book for the Republic of South Africa, 1973, Chapter 66, p. 297. 21/ See S/lig^S, p. 3, also at pp. 37 and 53. 22/ See, e.g., S/12180, footnote 1; similar to the text set out in para. 21 above. - 8 -

22. On 29 April 1976, the South African Mission addressed a letter to ••-•" r.«crotnrv-0eneral transmitting an extract, from a statement m.idf v>v PHn-.e «• MiiiiLu- Vnrster of South Africa in the House of Assembly,,in,which-Ive laid •necific claims to Walvis Bay as belonging to South Africa.— Th'e relevant -art of the statement reads as follows: • . • "The idea is milling around very persistently in my mind that, since we transferred the administration of Walvis Bay to South West Africa in 1922, we should give very serious consideration in the recess to whether we should not repeal that Act. I am saying this for the simple reason that there are people in South West Africa, and in the outside world in particular, who adopt the standpoint that Walvis Bay belongs to South West Africa. I do not want there to he any misunderstanding whatsoever about this. Walvis Bay belongs to South Africa. At this moment I am saying no more ,than that this is sinply an idea I have. However, it is an idea to which I shall give very serious thought during the recess." ""' oh/ 23. In the South African Shipping Act No. 71* of 26 May 1976^-' a new Item was added to the section on definitions: "South African ports includes r.3 nort of Walvis Bay". This definition was not contained in the previous - -'hinping Act No. 20 of 1929, amended by Shipping Board Amendment Act No. 19 of 1965. 2k. On 31 August 1977, the Government of South Africa announced that the "Atlantic port of Walvis Bay would cease to be administered./hy^South West Africa and would revert to administration by South Africa's Cape Province." 25/ " i 8 September 1977, in reaction to the Council for Namibia's statement ':1 267 :-

23/ S/12062, Annexure, first paragraph. 2k/ Union _Goyernment Gazette No. 5139, 26 May 1976, p. 3. 2J5/ See New York Times, 1 September 1977, p.A8:3. _ L.eJiqnde.' 10 September 1977. See para. 7 of Council for Namibia's -.'iteinent in para. 3^ below. - 9 -

He also added: "Walvis Bay is South African. It has been so for nearly a hundred years. ri IL became part of the Cape in l68'i, part of the Unioni^nu!\'.'l .j..'. r irl of the Republic in 1961. In addition, it has always been recognized by all countries as belonging to South Africa. This ownership has never been contested even in the.hottest debates of the United Nations." 25. The position of the Government of South Africa that Walvis Bay is part of its territory was reflected in certain publications of the United 27/ 287 Nations— and reports of some United Nations organs.— ., .

(c)- the position of OAU re: Walvis Bay

26. During the twenty-ninth regular session of the Council of Ministers and the fourteenth regular session of Heads of State and Government of the Organization of African Unity held in Libreville 22-30 June 1977, the Council • and the Assembly of Heads of State and Government passed a resolution in which .they reaffirmed that any agreement negotiated to lead Namibia to genuine independence must be based on certain specified pre-conditions, including the preservation of the existing limits of the Territory jncluding Walvis Bay as 2Q/ a part of Namibia.—-

27/ See, e.g., Demographic Yearbook 1967, p.l*»5, footnote 28 (1968); ibid., footnote 37, p.1^7; Statistical Yearbook 1973, P-75, footnote Uo (197U); Demographic Yearbook 1975, p.250, footnote 10 (197M. The footnote was, however, omitted in the 1976 Statistical Yearbook. 2_8/ See Reports of the Committee on South West Africa, GAOR, ninth session, Suppl. No. lU (A/2666), Annex V, p.lh, para.5* i_bid_. , tenth session, Suppl. No. 12 (A/2913), Annex II, p.8, para.10; ibid., fifteenth session, Suppl. No. 12 (A/Uh61t), Annex V, p.Ult, footnote 2H6. In an annex to the 1976 report of the Special Committee on the Granting of Independence to Colonial Countries and Peoples it was stated that Walvis Bay "which, although not formally a part of Namibia, is administered together with it" (A/31/23/Add.3 of 29 September 1976, Annex, p.2, para.2). In an annex to the 1977 report of the Special Committee it was stated that Walvis Bay "which, although formally part of South Africa, is geographically part of Namibia and has been administered by South West Africa since 1922" (A/32/23/Add.2 of 7 September 1977, Annex, p.2, para.2); repeated by the same Committee in Doc. A/32/23 (Part III) of 12 September 1977, Annex II, para. 52.

29/ See OAU Document CM/RES/551/XXIX. " \'. * - 10 -

(d) the statements of SWAPO re: Walvis Bay 27. Sneaking at the World Conference against Apartheid, Racism and Colonialism, in Southern Africa, held in Lisbon from 16 to 19 .Finn* V). !, u»e President of the South West Africa People's Organization (SWAPO) stated that SWAPO'a position in respect of a, negotiated solution was. based on four pre- conditions one of which being to include "South Africa's respect of Namibia's territorial integrity, including Walvis Bay.-^ 28. On 1 September 1977, SWAPO issued a press release entitled "Our ; Walvis Bay must be liberated" in response to South African proclamation of 31 August 1977. The press release stated :•*— "SWAPO of Namibia re-affirms on this occasion our uncompromising position that Walvis Bay has always been and is-an integral part of the Territory of Namibia. . "The status of Walvis Bay like the rest of Namibia is a colonial question which requires political solution either through negotiations or armed struggle. "It was by colonial conquest and subsequent unilateral, imperalist, legislative and administrative arrangements that the successive foreign powers imposed their dominance over our country and peoples. That is how our people's sovereignty over the land, its resources and territorial integrity has been usurped and violated.

"The primary objective of our struggle today is to end this colonial conquest in all its manifestations in the whole of our country, including Walvis Bay.

. • "For these reasons and more, SWAPO and the oppressed people of Namibia continue to reject, denounce and oppose South Africa's aggres- '"' sive, expansionist designs to annex any part of our national Territory', especially in this case, the port of Walvis Bay, which that regime has now elected to incorporate into the Apartheid republic of South Africa. "The United Nations, in particular the U.N. Council for Namibia, but also the rest of the World Community must strongly condemn and ' reject the Vorster regime's arrogant proclamation of August 31, 1977, to annex our port of Walvis Bay on the basis of dubious legal arguments and political maneuvres, which are all in any case unjustifiable and unacceptable. f

i "SWAPO and the oppressed people of Namibia appeal to the international community to take appropriate measures as a matter of urgency to prevent the consolidation of this criminal action by South Africa."

- 30/ See UN Document A/AC.131/L. 51, para. 77.

31/ SWAPO press release NO/P/8/3/77 of September 1, 1977.

• \ • -fr-yvT^*^

- 11 -

(e) the discussions and decisions at United Nations meetings . and conferences re: Walvis Bay •-'•'..*.

9 * 29, In 197^, the United Nations Council for Namibia, in its report to the tventy-ninth session of the General Assembly, included a specific proposal concerning the preparation of "a detailed study of issues relating to the 327 frontiers of Namibia, with particular reference to the status of Walvis Bay".—' Pursuance of this undertaking by the Council was also included in the recom- mendationsomendai f the Council to the thirtieth session of the General Assembly in 1975.j33/ . 30. In the report of the United Nations Council for Namibia to the thirty- first session of the General Assembly in 1976, it was stated that according to the Commissioner's report, his office authorized the preparation of a number of specialized reports including a report on the "Legal Status of' Walvis

31. A recommendation by the Council for Namibia which would request the Secretariat to urgently undertake in consultation with the Council the preparation of a comprehensive United Nations map of Namibia reflecting therein the 35; territorial integrity of the territory of Namibia — was endorsed by the General Assembly in its resolution 31/150 of 20 December 1976. This question was taken up by Standing Committee III of the Council for Namibia a$, its meeting held on 7 September 1977. Making introductory remarks about the map, the Chairman said that it was a map of political significance, particularly now that South Africa was annexing Walvis Bay. He added that Walvis Bay was considered by the Committee and the United Nations as a whole to be an integral 36/ part of Namibia.-"- 32. On 5 October 1976, some delegations in the Security Council referred to the question of Walvis Bay in their statements. Tanzania, for example, took issue with the South African claim contained in the footnote to document 377 ' S/12180 (para. 21 above) as "mortgaging of Namibia". — Morocco implied that

32/ See GAOR, twenty-ninth session, Suppl. No. 2't (A/962'0 Vol. I, .' ' para. 268 (u), p. 5U. ., .,\\ 33/ See GAOR, thirtieth session, Suppl. No. 2U (A/10021* ) Vol. I, para. 256 (a), p. 86. See GAOR, thirty-first session, Suppl. No. 2l* (A/31/2U), Vol. I, Sec.D (e), p. *»6. 3_5_/ See ibid. , Sec. E (51), P- 83- 3_6/ See United Nations Press Release NAM/3li3. 31/ S/PV.1959, p. 37. v _ - 12 -

South Africa was casting doubt on Namibia's sovereignty over certain port -jQ/ installations whose ownership had never been contested before. — Mauritius » ' also took issue with South Africa's position as "undermining Namibian rights or bargaining positions as to Walvis Bay and Namibia's economic depertdence on the

33. The International Conference in Support of the People of Zimbabwe ' and Kaaibia, convened by the United Nations in Maputo from 16 to 21 May 1977, ••' IIQ/ adopted a declaration, paragraph 25 of which reads: — "The Conference recognizes Walvis Bay as an integral part of Namibia and rejects the attempts of South Africa to separate it from the rest • of Namibia with which it is. inextricably linked by geographical, historical, economic, internal and ethnic bonds. All States should endeavour to dissuade South Africa from pursuing its efforts to separate Walvis Bay from Namibia." 3U. On 7 September 1977, -the United Nations Council for Namibia held a neeting in which it approved a statement in response to the South African announcement with respect to Walvis Bay (see para. 2U above). This statement, which was circulated as a document of the General Assembly and of the Security Ul/ -" • Council, is reproduced below: — "1. The United Nations Council for Namibia has learned with grave concern of a report that the Government of South Africa has announced that the port of Walvis Bay would cease to be part of Namibia and would be administered as part of South Africa's Cape Province.

"2. The United Nations Council for Namibia condemns in the strongest terms this unilateral attempt by South Africa to destroy the territorial integrity and unity of Namibia. Walvis Bay has always been an integral : part of Namibia and South Africa has no right to change its status, or to appropriate it as a part of its own territory. The action by South Africa is against the territorial integrity of Namibia as recognized by General Assembly and Security Council resolutions, in particular Security Council resolution 385 (1976) of 30 January 1976. The South African decision is illegal and is an act of racist and colonialist expansion and deserves the condemnation of the entire membership of the United Nations. Furthermore, its decision to extend its own racist legislation to the blacks in Walvis Bay is a blatant act of provocation and calls for universal denunciation.

38/ Ibid_._, p. 51. 39/ Ibid., p. 57. ' S/1231»U/Rev.l-A/32/109/Rev.l, Annex V, p. 7. A/32/212-S/12397, Annex. For discussion of this statement in the Council for Namibia, see A/AC. 131/SR. 263. For the reaction of South Africa to the statement, see paragraph 2^ above.

^£-.*••^* ------_-- -, - ___ ^A ; ™--.-. -r—m*-^~-ne.-£-T-*3r' •**tt^&^^^'Z2&^^~^:^_*ZZ^^f?^£''Z.' -^-^^H?? "3. The United Nations Council for Namibia strongly endorses the statement of the International Conference in.Support of the Peoples of Zimbabwe and Namibia, held at Maputo from l6 to 21 May 1°77, concr^r.fnf thr status of Walvis Bay. In its Maputo Declaration in'Support"of ihe Vrnpjra of Zimbabwe and Namibia and Programme of Action for the Liberation of * Zimbabwe and Namibia, the Conference recognized Walvis Bay as an integral part of Namibia and rejected the attempts by South Africa to dismember the Territory of Namibia and especially the decision to annex Walvis Bay. . , "h. The United Nations Council for Namibia recalls the decision taken by the Council of Ministers of the Organization of African Unity (OAU) at its twenty-ninth ordinary session, and subsequently endorsed by the Assembly of Heads of State and Government of OAU at its.fourteenth ordinary session, which reaffirmed that any agreement negotiated to lead Namibia to genuine independence must be based on specified pre- conditions, inter alia, the preservation of the present limits of the Territory, including.Walvis Bay as a part of Namibia.

''5. The United Nations Council for Namibia declares that the status of . Walvis Bay is a colonial question. It was through colonial conquest and subsequent unilateral imposition of administrative arrangements that successive colonial regimes imposed their domination over the people and resources of Namibia, including Walvis Bay. The attempts by South Africa to perpetuate its control over Walvis Bay are an indication of the aggres- sive and expansionist designs of the Pretoria regime, which must be countered by the firm responses of the United Nations. _ i.h .

"6. The United Nations Council for Namibia reiterates its full support of the legitimate struggle of the Namibian people under the leadership of its liberation movement, the South West Africa People's Organization • (SWAPQ), to achieve self-determination and national independence in a united Namibia. The legitimacy of the struggle has been solemnly proclaimed by resolutions of the General Assembly and the Security Council. In particular, in its resolution 31/1^6 of 20 December 1976, the General Assembly declared that the continued illegal occupation of Namibia by South Africa constituted an act of aggression against the Namibian people and against the United Nations as the legal authority to administer the Territory' until independence. It furthermore supported the armed struggle of the Namibian people, led by SWAPO, to achieve self-determination, freedom and national independence in a united Namibia. The refusal of South Africa to withdraw from Namibia and its current designs on Walvis Bay constitute an increasing threat to international peace and .security in southern Africa. "7- The independence of Namibia cannot be complete without the recovery of•Walvis Bay from South African control. The United Nations Council for Namibia expects the Security Council to take appropriate and adequate measures to maintain the status of Walvis Bay as an integral part of the international Territory of Namibia." Part II. Analysis

A. The detachment^ of Walvis Ito^JfrQti^ts^hir&erlnn^ty^plvjiln^ occupation created two Artificial colonial territories 35- The history surveyed above shows that Walvis Bay passed under the governance of South Africa as a continuation of a colonial annexation by - Great Britain originating in 1878. It was separated from its hinterland, South West Africa, which was originally colonized by Germany in 188U. It can therefore be said that Walvis Bay and South West Africa (Namibia) became colonial and non-self-governing territories by virtue of their acquisition by colonial powers between 1878 and 188H, the former by Great Britain and the latter by Germany. The result of this arbitrary division between the two colonial occupiers was.that, what was geographically and historically a single territory came to be divided and Walvis Bay, including the area adjacent thereto, was artificially separated from the rest of the territory. 36. It is, therefore, clear that Walvis Bay was not part of the German protectorate of South West Africa which became a mandated territory under •••1 -• the administration of South Africa from 1922 until the termination of the Mandate in 1966. But it is equally clear that South Africa, even when it first occupied South West Africa during the first world war, and when it assumed the administration of the mandated territory and claiming sovereignty over Walvis Bay, recognized the necessary unity of the whole territory by treating Walvis Bay as part of South West Africa (Namibia) :for all purposes (administrative, judicial, electoral, etc.) (see paragraphs 6-13 above). Thus Walvis Bay never in fact became an integral part of South Africa and remained a colony administered as part of the mandated territory of South

West Africa. • -.-..'.. vc B. The treatment by^South Africa of Walvis Bay^ _and South West ••••' '^' Africa as a single territory established the existing pattern • which must be maintained. 37. It has been shown that for a period of more than half a century, 'in fact from 1915 until 1977, South Africa integrated Walvis Bay into South West Africa and developed it as the most important component of Namibia's infrastructure. The mutual dependence, upon each other, of the territory of - 15 -

South West Africa and Walvis Bay, which necessitated their integration into a single 'territory over the years by South Africa, is as valid now as it was from the beginning. The pattern has irrevocably emerged in which reliance has been properly placed upon Walvis Bay having become the only important infragtrueture of Namibia. It was found by South Africa td be more suitable for development into a principal port than any other port within the territorial limits of South West Africa (Namibia). Accordingly any action seeking now to detach Walvis Bay from Namibia would not only be against the unity of Namibia but also disrupt the economy and development of Namibia and of its main port Walvis Bay. This would Jeopardize the opportunity of Namibia to emerge as a viable independent State. Thus South Africa is foreclosed from changing the position which it has consistently maintained for over half a century by treating Walvis Bay as an integral and essential part of Namibia and developing it into the area upon which the socio-economic structures of the people of Namibia and its main port Walvis Bay are entirely depending.

C. The decolonization of Walvia Bay as an integral nart of , .... <;; Namibia must take place in the context of Namibia's, road •. ... to independence. . .-,••.".L...... ••.-.

38. While it may be said that colonization was an- act tolerated in the nineteenth century and even at the beginning of the twentieth century, today different concepts and practice have evolved, particularly since the adoption by the General Assembly of the United Nations of resolution 151** (XV) pro- claiming the principles of decolonization. This resolution entitled "Declaration on the granting of independence to colonial countries and peoples'1 contained, inter alia, the following provisions: • • . ') "5- Immediate steps shall be taken, in Trust and Non-Self- Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.

"6. Any attempt aimed at the partial or total disruption of. the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.'1 „ ^^'.-^Ms^Jaf r.at-^Vw^:^1-^^'.^^^

- .16 - .

39. The principles of the above resolution including those of the Charter of the United Nations represent the contemporary international law in regard to non-self-governing territories and are clearly applicable in thin case. As stated by the International Court of Justice in itfo nrtvigory * opinion of 21 June 1971:— * * r « "The concept of the sacred trust was confirmed and expanded to all 'territories whose peoples have not yet attained a full measure of self-government1 (Art.'73). Thus it clearly embraced territories " under a colonial regime. Obviously the sacred trust continued to apply to League of Nations mandated territories on which an international, status had been conferred earlier. A further important stage in this development was the Declaration on the Granting of Independence to Colonial Countries and Peoples (General Assembly resolution 15lh (XV) of lU December I960), which embraces all peoples and territories which 'have not yet attained independence*'1;'" 'JO. It is in line with the opinion of the Court—' ' u-y that a legal interpretation is normally subject to the standards and norms in force at the time the interpretation-is made. The legal status of Walvis Bay should, therefore, be viewed in light of contemporary international law reflected in the General Assembly resolution pronouncing the principles of decolonization. Under these principles, and taking into account the unique history of Walvis Bay, the original arbitrary separation of Walvis Bay from South West Africa by colonial powers can no longer be lawfully reverted to. Accordingly, the South African action to place Walvis Bay under "administration by South Africa's Cape Province" cannot, in the situation as it has evolved today, be legally Justified. ! •• ' 1»1. If United Nations decolonization principles and objectives have not been specifically pronounced as applicable to Walvis Bay by a UN organ until the statement adopted by the Council for Namibia on 7 September 1977, this had undoubtedly been due mainly to the overriding preoccupation of the United Nations with the status of the territory of Namibia and the non- . fulfilment by South Africa of her obligations towards that territory. It should also be kept in mind that Walvis Bay had been treated'%y South Africa since 1915 as an integral part of Namibia (South West Africa). That the claim of sovereignty by South Africa over Walvis Bay had not previously become an issue in discussions regarding Namibia is therefore not at all inexplicable. But as soon as it became an issue, when South'Africa announced its intention to separate W.alvis Bay from Namibia, the United Nations took the stand stated in paragraph 3^ above.

**g/ Advisory opinion, ICJ Reports 1971, p. 31, para. 52. Ill/ IMA-' para. 53. - 17 -

Part III. Summary and conclusions

I*?. From the preceding historical survey and analysis, it, fr « . Ihnt: (1) The rationale which justified South Africa's treatment of Walvis Bay as ah'integral part of South West Africa (Namibia) for over half a century should continue to be relied upon to maintain the de_ facto integration of Walvis Bay into Namibia thereby maintaining

a viable single territory. . r. (2) An attempt by South Africa to detach Walvis Bay from Namibia vould result in the disruption of socio-economic unity and territorial integrity of Namibia, and vould be a breach of contemporary principles of international law governing the granting of independence to colonial peoples. (3) Both Walvis Bay and Namibia (and each of them) have an inalienable right to decolonization together as an integral vhole. (U) South African legislation from 1922 by vhich it systematically integrated Walvis Bay into the mandated territory of South West Africa may be considered as having been entirely consistent with the duty it assumed to administer and develop the mandated territory itself on the basis of the concept of sacred trust. When, after 19**5 the concept of sacred trust was extended to ii include all other colonial territories such as Walvis Bay, the basis for an international obligation upon South Africa to administer and develon the two mutually dependent areas under the concept was even more complete. Accordingly, an attempt by South Africa now to invoke a domestic legislation to revert Walvis Bay to its pre-1922 status would be a derogation of its international obligations under the sacred trust and also contrary to public international law. UNITED NATIONS Distr. GENERAL

GENERAL SECURITY A/32/212 S/12397 ASSEMBLY COUNCIL lit September 1977 ORIGINAL: ENGLISH

GENERAL ASSEMBLY SECURITY COUNCIL Thirty-second session Thirty-second year Item 91 of the provisional agenda* QUESTION OF NAMIBIA

Letter dated 9 September 1977 from the Acting President of the United Nations Council for Namibia to the Secretary-General

The United Nations Council for Namibia, at its 263rd meeting on 7 September 1977, adopted a statement strongly condemning the decision of the Government of South Africa to separate the area of Walvis Bay from the rest of Namibia and administer it directly as part of the Cape Province of South Africa, I have the honour to transmit to you the text of the statement.

The United Nations Council for Namibia decided furthermore to request that the statement be circulated as a document of the General Assembly and of the Security Council.

(Signed) Rikhi JAIPAL Acting President of the United Nations Council for Namibia

* A/32/150.

77-16950 PERMANENT SOUTH AFRICAN MISSION x- n TO THE UNITED NATIONS A ^

17TH FUOOR-3OO EAST -42«P STREET

NEW YORK, N.Y. IOOI7 2 September 1977

Excellency,

Upon instructions of my Government, I have the honour to convey to you the text of a message relating to Walvis Bay: The attention of the South African Government has been drawn to a news report that a United Nations spokesman made the following statement on behalf of the Secretary- General in connection with the transfer of the administration of Walvis Bay on 1st September to the South African province of the Cape of Good Hope. "It is unfortunate that such a unilateral act should have been taken by South Africa at a time when concerted efforts are being made to find a peaceful solution to the whole problem of Namibia." I should like to point out that there has never been any question as to where the sovereignty over Walvis Bay lies. Walvis Bay has since 1884 been part of the Colony of the Cape of Good Hope and since 1910 part of the Union of South Africa, later the Republic of South Africa. Acting on its own authority, the South African Parliament decided in 1922 that it would be more practical if Walvis Bay were to be administered as if it were part of the Territory of South West Africa. Walvis Bay being part of the Territory of the Republic of South Africa the South African Government is fully entitled to make any arrangement in regard to the administration of Territory over which it holds sovereign jurisdiction. The strongest exception is therefore taken to this statement which implies that the Secretary-General of the United Nations may arrogate to himself the right to pronounce on the internal administrative arrangements of a Member State of the United Nations. The Charter of the United Nations lends the Secretary-General no such authority. Please accept, Excellency, the assurances of my highest consideration. ADRIAAN EKSTEEN Charge d'Affaires

H.E. Mr Kurt Waldheim Secretary-General of the United Nations NEW YORK N.Y. PERMANENT SOUTH AFRICAN MISSION -

TO THE UNITED NATIONS 17™ FLOOR-3OO EAST 4Z"° STREET NEW YORK.N.Y. IOOI7 2 September 1977

Excellency,

Upon instructions of my Government, I have the honour to convey to you the text of a message relating to Walvis Bay: The attention of the South African Government has been drawn to a news report that a United Nations spokesman made the following statement on behalf of the Secretary- General in connection with the transfer of the administration of Walvis Bay on 1st September to the South African province of the Cape of Good Hope. "It is unfortunate that such a unilateral act should have been taken by South Africa at a time when concerted efforts are being made to find a peaceful solution to the whole problem of Namibia." I should like to point out that there has never been any question as to where the sovereignty over Walvis Bay lies. Walvis Bay has since l88^ been part of the Colony of the Cape of Good Hope and since 1910 part of the Union of South Africa, later the Republic of South Africa. Acting on its own authority, the South African Parliament decided in 1922 that it would be more practical if Walvis Bay were to be administered as if it were part of the Territory of South West Africa. Walvis Bay being part of the Territory of the Republic of ^. South Africa the South African Government is fully entitled to make any arrangement in regard to the administration of Territory" over which it holds sovereign jurisdiction. The strongest exception is therefore taken to this statement which implies that the Secretary-General of the United Nations may arrogate to himself the right to pronounce on the internal administrative arrangements of a Member State of the United Nations. The Charter of the United Nations lends the Secretary-General no such authority. Please accept, Excellency, the assurances of my highest consideration.

ADRIAAN EKSTEEN Charge dfAffaires

Mr- Kurt Waldheim U.S. Assails South Africa for Talcing Over Port, Washington Sept.2 (Reuters)

The United States has criticized S.Africa's decision to take control of the Atlantic port of Walvis Bay, the only deep-water harbor in South-West Africa, the territory that is called Namibia at the United Nations. "We regard this unilateral move by S.Africa as untimely and unhelpful in terms of the negotiations currently under way on the transfer of power in Namibia." and the State Department U>

UNITED NATIONS Distr. SECURITY ~

COUNCIL ^jjjS^ 19 August 1976 ORIGINAL: ENGLISH

LETTER DATED 18 AUGUST 1976 FROM THE PERMANENT REPRESENTATIVE OF SOUTH AFRICA TO THE UNITED NATIONS ADDRESSED TO THE SECRETARY-GENERAL

I have the honour to enclose the text of a statement issued in Windhoek today by the Constitutional Committee of the South West African Constitutional Conference. I should be glad if this letter and the enclosed text could be issued as a document of the Security Council.

(Signed) V. W. STEWARD For R. F. BOTHA Permanent Representative

76-15766 7 6

UNITED NATIONS NATIONS UNIES

INTEROFFICE MEMORANDUM MEMORANDUM INTERIEUR 3 August 1976 TO: The Secretary-General DATE: A:

EFERENCE:

THROUGH: S/C DE: MU Sean MacBride FROM: DE: United Nations Commissioner for Namibia

SUBJECT: Statu_, . s of*.„-. Wai vi•s Bay

Mrs. Elizabeth S. Landis has just drawn my attention to the insertion in the Definition Section of a new South African Act (The South African Shipping Board Act 1976) of the following Definition:

"l. In this Act, ... (iv) 'South African ports' includes the port of Walvis Bay." This is no doubt an effort to rectify the earlier assimilation of Walvis Bay as forming part of the international territory of Namibia. I enclose herewith a copy of Mrs. Landis' note on the subject and on the relevant South African legislation.

cc: Mr. E. Suy, The Legal Counsel Mr. Rafeeuddin Ahmed, Executive Assistant to the Secretary-General Mr. A. Farah, Assistant Secretary-General for Special Political Questions '•* UNITED NATIONS NATIONS UNIES

INTEROFFICE MEMORANDUM MEMORANDUM INTER1EUR

TO: Mr. Sean Mac Bride DATE: 3 AUgUSt 1976 A: UN Commissioner for Namibia

REFERENCE: THROUGH: S/C DE;

FROM: DE: Elizabeth S. Landis, Legal Con suit an Office of the UN Commissioner for Namibia

SUBJECT: Status of Walvis Bay OB JET: >t-

The South African Government appears to be worried about the status of Walvis Bay and therefore to be taking measures which can only be interpreted as an attempt to reassert Jurisdiction over the port without admitting that sovereignty had ever been relinquished.

Thus this spring Parliament enacted a new South African Shipping Board Act, No. 7^ of 1976, which defines Walvis Bay as a South African port (copy of the definition attached as Annex A). Walvis Bay had by implication been considered a South West African port under the Shipping Board Act, No. 20 of 1929 (Annex B), which was replaced by this year's legislation.

While the new law makes numerous changes in the 1929 Act, these changes could have been made by amendment, rather than by substitute legislation. However, the insertion of the new definition of Walvis Bay as a South African port would have been far more obvious in amending legislation than it is in an entirely nev act. REPUBLIC OF SOUTH AFRICA rOYEMNMOSNT GAZET

VANiDBS/REPUBLIEK VAN^SUID-AFRIKA:

Registered at 'the Post Office'as a 'n Nuusbjadby die PosR'ariloor Gcregislreer.^ff;.

' Priccv;-20c 0 Overseas 30c POST FREE—3POSVRY,V^ - -

-•:-•.- i.-'.r..

CAPE TOWN;'26. MAY. 1976:^6-"- VOL. 131] /i . .. . No.5139'.-.; KAAPSTAD/.21 MEI

DEPARTMENT OF THE PRIME MINISTERS 8.'. ] DEPARTEMENT VAN DIE EERSTE MINISTER :lv

I f - - •• • • - — No. 915. ' 26 May 1976. •No. 915nSi: 26 Mei 1976. It is hereby notified that the Slate President has'assented =n--!Hierby word bekend gcmaak dat die Staatspresident sy to the following Act which is hereby published for general goedkeuring' gcheg bet aan die ondcrstaande Wet wat information:— hierby fer algerhene inligting gepubliseer word:—: • No. 74 of 1976: South African Shipping Board Act, 1976. [o. 74 van 1976: Wet op die Suid-Afrikaanse Skeepvaart- : • -raad,1976. SOUTH AnnCAN V.NHTINfi HOARD ACT. 1976 VI No. 7-1, 1976

1 f ACT To establish a South AfiicnnJShippiiig Bonrd; fo determine its funcdons; and to provide for ninfters connected therewith. (Afrikaans text signed by the State President.) . (Assented to 14 May 1976.) IT ENACTED by the State President, the Senate and the House of Assembly of the Republic of South Africa, as fol1o\vs: — t, . t I. In this Act, unless the co'htext otherwise indicates — Definitions. CO "board" means the South African Shipping Board ;^t;i;:^. established by section 2; (if) - .-'-.• • - ~nn4~(iiV"Minister" means the Minister of Economic Affairs; m\l.^-.- ~>ijj(iii)_ "prescribed" means prescribed by regulation; (vi) " : (iy) "regulation" means a regulation made under this -• ' ' r" means any person owning or having any over any ship engaged in the ocean transport .-: -.£=1^31 "of goods to, from or between South African ports or -— .=.-.-i! having control over the disposal of space on such a

V .... - . "~1( 0 "South Africa""n ports-" includes the port of Walvis

• 2..-There" is..hereby-estaHished~a"board to be known as the Establishment of South African Shipping Board. . ' the South African ..^ . rv_*». Shipping BoarA'-- - 3-_(l)'riie board shall consist of thirteen members, appointed Constitution of-, -..-•:--:^--- .'-1->s _'"•' by the Minister, of whom— the Board. . J _:. _;|,;.;.:;, ; '.-:-; ;'Ttl(aji! (i) one shall be the Secretary for Commerce, who . L •-•-'-Li-i^;- - shall also be the chairman of the board; '..,>..,-.. = • .-. - = ^i^4;- (iO three shall be other persons in the service of the ;||":;" ; state; . .,,•-•;.-• - ^:"l[6) : one shall be a person in the service of the South African --: - . - ;-T : Viffll,:. Railsvays and Harbours Administration; .. ',','. :..: • •'• " '-•-" • •":.(c)~'one shall be a person appointed to represent the ..-'.;\- ' _^.-^;-., ''•"•"tll^". 1_ Perishable Products Export Control Board referred to ' "•• >. •• ' : • i" in section 1 of the Perisliable Products Export Control . .;; Act, 1926 (Act No. 53 of 1926); \d) two shall be persons appointed to represent organized commerce; / (e) three shall be persons appointed to represent organized industry; (/) one shall be a person appointed to represent the mining industry; and (g) one shall be a person appointed to represent persons engaged in agriculture. (2) To enable him to make the appointments contemplated in subsection (1), the Minister shall by notice in writing invite as many nominations as he may in a particular case deem necessary, from— B STATUirs OH THI; Ki 1'uni.ic OF SOUTH AITUCA — *-

SHIPPING BOARD ACT NO. 20 OF 1929

[ASSENTED TO 23 M/VRCH, 1929] [DATE OF COMMENCEMENT: 3 APRIL, 1929] (Signed by the Governor-General in Afrikaans}

as amended by Shipping Board Amendment Act, No. 19 of 1965

ACT To provide for the establishment of a Board to advise the Government on matters affecting ocean transport. ., ' 1. Establishment of Skipping Board.—(1) There 'shall be established as from'a date-.^ •-- to be fixed by the State" President by proclamation in the Gazette a Board to be known as-V-^.i the South African Shipping Board (hereinafter referred to as the Board).•-•'}. '• (2) The Board shall consist of six members to be appointed by the State President.-::. Three of such members "shall be^iiominated by the State President.'of whom, two shall hot' ;^i. be members'of the Public Service or of the' Railways and Harbours Services,'and of the'T-^ :--- remaining three one shall be nominated by the Association of Chambers'of Commerce,-.•-voc. one by the Federated Chamber of Industries and one by the South- African .Agricultural'•...• J Union: Provided'that no person who is in the employ.of_or holds any office or share'or---*". i interest in any shipping; company shall be'nominated by "any such body, and that in ther^r:- - I event of any such body failing or refusing to make a nomination or nominating a'disqualified -:"; i ~ , person, the nomination of the member shall be made by the State President J-;~, ;

;'. [Sub-s. (2) substituted by s. 1 (a) of Act No. 19 of 1965.] - ~:~-r: : K (3) (a) The State President shall designate one of the members "as chairman who I shall have a deliberative vote, and in the event of an equality of votes, a casting vote. •£•":" (6) If the chairman is for any reason whatsoever unable to act as such, the Minister-..,.,- may designate another member of the Board to act as chairman during thaj inability, and : i the member who is'so'designated may, while he is acting as chairman, exercise all the powers >--* and perform all the'duties of the chairman. \, [Para. (6) inserted by s. 1 (b) of Act No. 19 of 1965.] i."> v '£*•' (4) The State President may appoint as additional members of the Board, but, with- Jh- out voting powers, not more than three'persons in the employ of the Government or the^^r --• Railways and Harbours Administration..'': •. *''.: (5) The chairman and other members of the Board shall be appointed for such periods L. •'=. and upon such conditions as the State President may from time to time determine..•'••>?.

2. Function and dnty of Board.—It shall be the function and duty of the Board, subject; : \ to the provisions of this Act and any regulations made thereunder, to investigate and report. : to the Minister upon any matters relating to ocean transport to, from, or between Republic ''-. ports, including more particularly any question—

(Issue No. 1) 15 STATUTES OF THE REPUBLIC OF SOUTH AFRICA — SHIPPING ..-s, 2-5 Shipping Board Act, No. 20 of 1929 ss. 2-5

(a) as to whether the rate of freight charged by any shipowner on any particular commodity exported from the Republic is prejudicial to Republic exporters as compared with their overseas competitors; (4) as to whether the rate of freight charged by any shipowner on any particular commodity imported is unreasonably high having regard to the rate of freight for that particular commodity operating on other ocean routes; (c) as to failure on the part of a shipowner to give reasonable notice of changes in freight classifications or rates; (d) as to the levying by any shipowner of differential freight or other charges as between one shipper and another in respect of the ocean conveyance of . :_-; goods to, from, or between Republic ports; -...--, 00 as to differential or unfair treatment by any shipowner of any shipper in .;> respect of the allocation of space accommodation or any other matter. SJiuci reports shall at the request of the Board and with the approval of the Minister be Ia-al3 upon the Table of both Houses of Parliament. -^.- • •! 3. Regulations as to meetings and powers of Board. —Th e State President may make regulations not inconsistent with this Act — • :•££? _••'=;; (a) as to the manner .in which the meetings of the Board shall be convened, when ,, *• # .'-* • and where meetings shall be held, and the notice to be given 'convening such : '.; ".-,"' meetings;- 'i ss; '.":-;_.*'.. (8) as to the quorum necessary to constitute a meeting, the procedure at meetings,' - ----. the manner in which minutes of meetings "and other records shall be kept and - •_-^:'- ' .• the manner in which the results of the Board's deliberations shall be con- " :••, • veyedjo the Minister;-..-r; -*5ii?'-( (c) as to the powers which shall be vested in the Board to enable it to oblaiu such ijor-;!5--1 . information and to perform such acts as may be. necessary for the deter'mina- "•^•/r;r tion'of any matter under consideration or for the due and proper fulfilment -^."d . of the duties and functions : assigned to.it';- > it: -"-tyv (d) '.prescribing the information iwhich ^shall be made of furnished by shipowners ; "''•.'•• •- •. trading to, from or between Republic Ports" and theii me when and the manner •_ '."{'•' - in which such information : shall Tje Ifumished; •• A : "• '' "• (e) prescribing penalties'which" shall hot exceed a fine of one hundred pounds for ',' '•'':• any contravention 'or failure 'to comply with a'riy such regulation;'-.-; •"'-'• ^':'- (f) generally for the better carrying, out of the objects and purposes of this Act. ':• • - '--4.' Interpretation of terms.— -In this Act-r^ """"Muiisfer" means the Minister of Railway's and Harbours or any Minister of State

-""Sepablic" includes the Mandated Territory of .South West Africa ;-V:« : ' '"shipowner" means any person owning orjbr the time bemg having any control over . orr in respect of any ship engaged in the ocean transport of goods or passengers to, from. orr between any ports of the Republic,1 6ir having the Control or disposal of space on any ship;';ip' , ^ S. - Short title.— This :Act may be cited as the Shippmg Board Act, 1 929. A. -

NOTE FOR THE SECRETARY-GENERAL

Legal Status of Waivis Bay

The question of the validity of South Africa's claim to sovereignty over Walvis Bay (the main port situated on the territory of Namibia) has been raised by the Commissioner for Namibia in recent communications to the Secretary-General, following the statement made in Parliament on 23 April 1976 by Prime Minister Vorster reaffirming that Walvis Bay "belongs to South Africa" and suggesting that the Parliament should envisage repealing an Act enacted in 1922 regarding the transfer of the administration of Walvis Bay to Namibia (see document S/12062). At the request of Mr. MacBride, a preliminary advice has been prepared on "the legal status of Walvis Bay". The study comes to the conclusion that South Africa no longer has title to Walvis Bay and that Walvis Bay is to be regarded as an integral part of Namibia for the following reasons: (a) South Africa has transferred sovereignty over Walvis Bay from itself over to Namibia: the process of voluntary divestment of title started in 1922 when the South West Africa Act transferring the administration of Walvis Bay to Namibia was enacted. it was characterized by a substantial incorporation of Walvis Bay into Namibia and by South Africa's continuing treatment of Walvis Bay as an integral part of the Territory for over half a century. (b) The effective integration of Walvis Bay into Namibia constitutes the attainment of substantial self-determination which South Africa cannot now reduce or abolish by terminating the integration into Namibia. (c) Considering the concept of "national unity" and "territorial integrity" as defined in the United Nations for all non self-governing territories, South Africa may not separate Walvis Bay from Namibia or deny the Territory the port which is tied historically to it and is necessary for — 2 —

its economic survival and development. The study considers it unfortunate that so far neither the OAU nor the UN, particularly the Council for Namibia, have challenged South AfricaTs claim to sovereignty over Waivis Bay. It suggests that these bodies now recognize the change of title and alter their legal positions, their publications and their data accordingly.

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The Office of Legal Affairs has been requested to look into the matter in depth and give further advice so that the Secretariat may be prepared for all contingencies, particularly should the question of the legal status of Walvis Bay come up in the course of any future consideration of the question of Namibia.

MKP/jeb 23 June 1976 S-G / Attached for your information is a short sornmary prepared by Mr. P^danou of a study on the Legal Status of Walvis Bay which was made by Mrs. Landis.

KH KH/jeb b/f: RA/FMG/MP/MR/lfi Files Legal Opinion/x Mr. P. Blaine Sloan 22 O££icer~in-Charge Office of Legal Affairs

Kurt Herndl Deputy Executive Assistant to the Secretary-General Legal Status of Wai vis Bay

1* 1 attach herewith a copy of a memorandum from the United Cations Commissioner for Namibia which is self- explanatory, as well as a copy of a study on the above- mentioned subject undertaken by Mrs. Elizabeth Landis at the request of the Commissioner for Namibia. 2. In view of the fact that the issue of the legal status of ttfalvis Bay might be raised in connexion with any future consideration of the question of Namibia by the Security Council, X believe it would be advisable, for the Office of Legal Affairs to look into the matter in depth. X understand that the Security Council might meet in August to consider Namibia. At that time we should be in a position to brief the Secretary-General and to answer any relevant questions which might be to us by the Council and/or its President. ' v •

UNITED NATIONS NATIONS'UNIES INTEROFFICE MEMORANDUM MEMORANDUM INTERIEUR

TO: DATE: lU June 1976 A: The Secretary-General

REFERENCE:

THROUGH: S/C DE:

FROM: Sean MacBride, E: United Nations Commissioner for Namibia

SUBJECT: Legal Status of Walvis Bay OBJET: ° •

In view of the communication from the South African Mission addressed to you dated 29 April 19765 transmitting an extract from a statement made by Prime Minister Vorster on 23 April 1976 in which Mr. Vorster laid specific claims to Walvis Bay, as "belonging to South Africa, I addressed to you an inter-office memorandum on 1 May 1976. In this inter-office memorandum I raised the question of the validity of South Africa's claim to Walvis Bay and indicated that I had asked Mrs. Elizabeth Landis, who is acting as Consultant to my Office, to prepare a preliminary advice on this question. Mrs. Landis has now completed the preliminary advice on "The Legal Status of Walvis Bay" and I enclose a copy of the preliminary advice herewith. It also occurred to me that in the light of the interview which is to take place between Dr. Kissinger and Mr. Vorster in Hamburg on 23 and 2H June and the Security Council meeting on Namibia which will probably take place in August, you might wish to ask the Office of Legal Counsel to begin to undertake a study of the questions discussed by Mrs. Landis in the enclosed paper. I also enclose a cutting from "The Rand Daily Mail" referring to the issue.

cc: Mr. R. Ahmed Executive Assistant to the Secretary-General Reaction mixed/ over Walvis Bay 'Mail' Africa Bureau halle constitutional confe- WALVIS BAY. — The rence. Town Clerk, of Walvis Bay, "One has heard about all Mr J. J. Wilken, yesterday options being open, and as welcomed the statement a result Walvis Bay was in , last week by the Prime the lottery hat. Now there Minister, Mr Vorster, that is certainty and it is good Walvis Bay belonged to news," Mr Wilken said. South Africa. The president oj Swanij. However, there has been Mr Sej^or^Veji, said yes- opposition from other terday it was his party s quarters. policy that the enclave of Mr Wilken said the Walvis Bay was an insepa- Prime Minister's statement rable part of SWA. He had finally brought clarity would never permit Walvis to the enclave with its Bay to become part of harbour installation valued South Africa. In fact, Mr at many millions of rand Vorster should now con- and private ownership of sider legislation to make land; valued at iR70-millipn Walvis Bay part of the as veil as one of the big- territory of SWA.. gest fishing industries in The Chief of the Herero, the southern hemisphere. • "If the Prime Minister that geograpKicaily Walvis has been quoted correctly, Bay was part of SWA. His 1 can only say I am happy. delegation to the Turnhalle I was one of those who per- summit intended, to dis- sisted in a clear point of cuss the entire matter of view about Walvis Bay. I Walvis Bay. Talks -would also understand that the have to start on making question of Walvis Bay Is Walvis Bay part of the on the agenda of the Turn- - territory of SWA, he said. UNITED NATIONS NATIONS UNIES INTEROFFICE MEMORANDUM MEMORANDUM INTERIEUR

TO: Mr. Sean MacBride, DATEl 9 June 1976 A: United Nations (bmmissioner for Namibia REFERENCE:

THROUGH: S/C DE:

FROM. Elizabeth S. Landis {SULt DE: ' >

SUBJECT: Legal Status of Walvis Bay '«. OBJET: This memorandum is addressed to the status of Walvis Bay at international law.

It has been prepared as a matter of urgency for Standing Committee III of the Council for Namibia since the Turnhalle Conference has raised questions concerning the present and future status of Walvis Bay. It is likely that the draft Namibian "constitution" which is now being prepared for adoption by the Turnhalle Conference this summer will contain some provision purporting to deal with Walvis Bay. Question stated The question is whether Walvis Bay is a South African enclave in Namibia or whether it is under Namibian sovereignty, being an integral part of Namibia. The South African claim is based on a straightforward chain of title: Unlike the territory conferred on South Africa as a mandate, Walvis Bay • had not been under German hegemony. It was annexed by the Cape of Good Hope Colony in iBBk and passed to South Africa at the time of Union. I/ It is commonly assumed to have remained under South African sovereignty in the absence of cession. The claim that South Africa no longer has title to Walvis Bay and that it is an integral part of Namibia rests on complex and perhaps novel arguments. In essence they examine South Africa's conduct vis-a-vis Walvis Bay and Namibia since the creation of the mandate; and they postulate that the legal consequences of such conduct under international law, including developing United Nations law, divest South Africa of title and ' irrevocably transfer sovereignty to Namibia. On 23 April 1976 Prime Minister Vorster complained in Parliament that "there are people in South West Africa, and in the outside world in particular, who adopt the standpoint that Walvis Bay belongs to South West Africa...."2/The vehemence of his subsequent assertion that ^1 do not want there to be any misunderstanding whatsoever about ... /the fact that/" Walvis Bay belongs to South Africa,'3^was a tacit acknowledgement that the Namibian claim is real and substantial. His tentative suggestion that UNITED NATIONS 8aS&» NATIONS UNIES

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the government might repeal the particular legislation^which constitutes an important element in the claim of Namibian sovereignty again recognized — * it it did not admit — the force of the argument that WaJLvis. Bay is.now part of Namibia. ' «t Conclusion 1 • This memorandum concludes that the second claim is valid: that Wai vis Bay is no longer South African territory, but has become an integral part of Namibia, and should be so recognized by the international community. The basis for this contention is essentially threefold: (1) Despite verbal claims by South Africa to continuing sovereignty over Walvis Bay, the Republic has transferred sovereignty over Walvis Bay from itself over to Namibia. This has taken place through a process vhich may be calle_d voluntary divestment ^of title - a kind of negative analogue to historical consolidation of title. This divestment has resulted not from a single specific act, but from the substantial jLncjxcpQration of Wai vis Bay into_Namibia by South Africa .at the very beginning of the mandate jperiod, ; followed by South Africa's continuing treatment of Walvis Bay as an integral part of the Territory for over half a century. (2) The effective integration of Walvis Bay, a non-self-governing territory, in Namibia, a contiguous territory of ethnically and culturally kindred people, constituted the attainment of substantial self-determination, as defined by the General Assembly for Walvis Bay. Under developing United Nations lav South Africa cannot now reduce or abolish the self-determination Walvis Bay has attained by terminating its integration into Namibia. (3) Under United Nations resolutions insisting on "national unity" and "territorial integrity" for all non-self-governing territories, and particularly for Namibia, South Africa may not separate Walvis Bay from the Territory in vhich it has_been incorporated or deny the Territory the port which is tied historically to the0Territory and is necessary for the Territory's economic survival and development. Walvis Bay; geographic and economic situation The "port and settlement of Walfish /i.e., whale/ Bay," as the area was called at the time of annexation, contains k3b square miles (l,12U square kilometers).—'According to the 188U proclamation annexing the enclave, it_x . is bounded "on the south by a line from a point on the coast 15 /nautical/ —' miles south of Pelican Point to Scheppman's Dorp; on the east by a line from Scheppman's Dorp to the Hooibank, including the plateau, and thence to 10 miles inland from the mouth of the Swakop River; on the north by the last 10 miles of the course of the Swakop River, and on the west N

OC...-.K.

\ \ I•

WINDHOEK*."- "

hi UNITED NATIONS NATIONS UNIES

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"by the Atlantic Ocean^.*. ." ™

Walvis Bay consists of the growing port, vith its extensive fish processing plants; the town, with its segregated Black workers' "barracks; coastal marshes; and surrounding all these, vast stretches of shifting dunes. The population, which was less than 1,000 at the end of the Second World War, now probably exceeds 20,000, and is confidently expected to reach 30,000 in the near future. It is largely confined to the so-called "municipal area"; the desert to the east is so bleak that only the most promising hectares along the Swakop River have been divided into farms. Townspeople gain their livelihood from fishing and fish processing; importing and exporting products destined for or originating in Namibia (occasionally in South Africa); and from local, commercial and governmental activities generated thereby. £/

Walvis is a western terminus of the Namibian railway system, which is controlled and operated by the South African Railways and Harbours Admin- istration. ^ connects^HLn- meandering— fashion j-via-Swakopmund and-Windhoek, . with Tsumeb and Grootfontein to the northeast; with Luderitz and Keetmanshoop in the south; and with the South African railway system at Nakop on the eastern border. Walvis has only two motor connections through the desert with the coast or hinterland. One leads to. the resort town of -Swakopmund. The other goes to Windhoek or, via a fork, to Rehoboth, and from either of these municipalities to any part of the Territory which is accessible by automobile. -3/

The harbour of Walvis is far larger and more favourably endowed than that of its only competitor, Luderitz, where shoals still compel ocean-going vessels to discharge and take on cargo via lighter. Walvis Bay has a wide mouth, a six-mile long protective sand spit, and a sandy bottom that can be deepened relatively easily and inexpensively. In fact, development of the port began in 1915» as soon as Union forces occupied adjoining South West Africa, and still continues. In the mid-1960T s the port was handling more than 1,000,000 tons of cargo annually, compared with some 30,000 tons at Luderitz. In view of the high cost and slow service of rail transport in Namibia, products °destined for any place outside certain areas of southern Africa .must be shipped via Walvis Bay in order to be competitive on the world market, Walvis Bay: history prior to creation of the mandate

Historical records concerning Walvis Bay indicate that it was occupied by Hamas when the first European explorers reached southern Africa in the late 15th century.

Due to the forbidding nature of the so-called Skeleton Coast of Namibia, Walvis Bay was ignored for decades until, in the l8th and 19th centuries, it became a regular watering and revictualling stop for whaling vessels heading for the Antarctic. Indeed, it is said that before the Great War Africans from the port would still shout greetings in whalers1 Norwegian to the crews of foreign ships entering the Bay. UNITED NATIONS NATIONS UNIES

Before the end of the l8th century the Dutch East India Company asserted claims to Walvis Bay, Angra Pequefia (Luderitzbucht), and Halifax Island to protect its interests in and around the Cape. When Great Britaii succeeded the Dutch "in southern Africa during and after the Napoleonic era, it kept a cruiser in South Atlantic waters to protect British whaling and sealing vessels. 'Operating off the African coast. However, the British did not, as urged, annex the entire territory "between the Orange River and Angola.

In 1878 the captain of a British warship took possession of the Walvis Bay area on .behalf of Queen Victoria^ 'six years later the Cape, Colony, acting under authority of Letters Patent issued by the Queen^>annexed the "port and settlement" and their immediate hinterlandV^The exact southern boundary was disputed by the Germans, who in 188U claimed the rest of the then South West Africa as a protectorate X5The_Jb^r^er^va.s_fjLnally_s_ettled in 1909 by arbitration-N^/

Walvis Bay wasjot integrated into the Cat>.e Colony as were the areas in~Soutn^Africarwhi^h~adJoined~ the— Colony^ — The Cape; annexationract-and — the Governor-General's proclamation issued under it provided 'that the Governor-General should legislate, for_VralYisBay by_proclamat_iQn. The small (white) population of the~Bay was not represented~~in the Cape legislature; and, in turn, laws enacted by it did not apply to the enclave unless extend* thereto by the Governor-General's proclamation.

At the time of Union Walvis Bay passed, as a possession of the Cape Colony,. to South Africa. X^xln 1915, after Union forces had occupied South West Africa, martial lav proclamations and regulations put in force in the Protectorate were "for the better administration of ... Walvis Bay on accour of its contiguity to the Protectorate," applied to the port and settlement as well.

Voluntary divestment of title

South West Africa Affairs Act of 1922

In 1922 Sotfth Africa began its voluntary transfer of sovereignty over _ Walvis. Bay 'in the Territc InTtnaTyea r Parliament enacted the Sbuth-West Africa Affairs 'Act, section 1 of which read:

1. (l) From a date to be. fixed ... the port and settlement of Walvis Bay which forms part of the Cape of Good Hope shall be administered fcs if it were part of the mandated territory and as if the inhaM^ant£_of_the_said port and settlement were inhabitants of the mandated territory; and the powers conferred upon the Governor General ... /to legislate for Walvis Bay/ may be delegated by the Governor-General to the Administrator of the mandated territory to the intent that the said Administrator may, by the repeal, alteration, amendment or modification of laws and the making of new laws bring the laws in force in that port or settlement into conformity with the laws of the mandated territory. * ' * * UNITED NATIONS fjjjjg NATIONS UNIES

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(A) ffo Act of the Union Parliament passed after ... /the fixed date/ shall apply to the said port and settlement unless by such Act it is specifically expressed so to apply or unless it is declared to apply by proclamation of the Governor-General .... * (5) As from the date fixed as aforesaid the said port and settlement shall for all Judicial purposes be regarded as forming part of the mandated territory and not as forming part of the province of the Cape of Good Hope.

As empowered by that section, the Governor-General set 22 September 1922 /as the date yhen the administration of Waivis Bay should be transferred to the Territory^vln the same proclamation he delegated all his law-making powers vis-a-vis Walvis Bay to the Administrator of South West Africa. The latter promptly clarified and implemented the provisions of section 1. By Proclamation 30 of 1922 he: (i) made Wai vis Bay part of the magisterial district of Swakopmund; (ii) repealed all laws in effect in Walvis Bay and substituted for them the laws then "existing and applied" in the mandate; (iii) provided that all laws issued in the future by the territorial Administrator should apply in Walvis Bay unless their operation there was expressly excluded;" (iv) provided that suits and proceedings pending in the magistrate's court in Walvis Bay should be regarded as removed to the magistrate of the district of Swakopmund and those pending in the Cape Provincial Division of the South African Supreme Court should be regarded as pending in the High Court of South West Africa; (v) provided that licenses hitherto issued by Walvis Bay (provincial or South African) authorities should thereafter be issued (or renewed) by, and fees in connection therewith be payable to, the corresponding territorial authorities; and (iv) directed that "all taxes, duties, dues and revenues of every kind and nature" payable within Walvis Bay to the Union or provincial government should instead be payable to the South West African Administration.'1^// Thus the Act and the proclamations issued under it placed Walvis Bay completely under ^territorial administration — including, as a particular" instance, because of their economic and administrative importance, territorial licensing authorities. Similarly, they made Walvis Bay subJectjbp_terrrtorial legislation, insteadjof South African and/p,r_CapJL_provincia.l legislation. JThey also trans- ferfeoT Walvis Bay from Union to territorial Judicial administration and determined UNITED NATIONS Mfffl NATIONS UNIES

-6- that in the case of any difference of interpretation between territorial and Cape courts, the former should control in Walvis Bay.

Subsequently, in 19^ * subsection 1 (U) of the 1922 Act was amended to read: ' ' 4. (1») Any Act of Parliament or proclamation "by the Governor-General, passed or issued after the date, fixed as aforesaid, which is in force or may come~into operation in the mandated territory, shall, - as long as and to the extent to which it is in effect in the mandated territory, be in force also in the said port and settlement, unless the Art or proclamation otherwise provides . This made automatic the application to Walvis Bay of any Union legislation which applied to the mandate. Thus Walvis Bay was, and remained thereafter (until revocation of the mandate), clearly subject to all laws applying to the Territory and to no others. It should be noted here that under the 1922 Act territorial criminal law applies to Walvis Bay as well as civil law. "Any act or omission which vould, if committed within the Territory constitute a crime, would, under the same law, likewise, constitute a crime if committed or omitted within the port and settlement of Walvis Bay * .Cp.p_txnuing course of conduct The incorporation of Walvis Bay into Namibia goes beyond, however, merely placing the enclave under territorial administration, laws, and judicial administration and interpretation. The Union — and later the Republic --- has sloughed off every kind of governmental authority over Walvis Bay and has directed the territorial Administration to exercise and I control every significant aspect of governmental activity in Walvis Bay which it exercises as to Namibia generally. To cite only a few of the more important examples: (i) The territorial Administration is responsible for collecting ^customs and excise duties in Walvis Bay and, indeed, has been ever since 1923^even before enactment of the 1922 South West Africa Affairs Ait. Customs and excise duties collected in Walvis Bay constitute part of territorial revenues, subject to allocation between the Republic and the Territory (including Walvis Bay) in accordance with the provisions of section 22 of the 19&9 South West Africa Affairs (ii) By Judicial construction, South West African immigration laws apply in Walvis Bay to the exclusion of South African law when there is a conflict. A person who is authorized to travel throughout the Cape but not to enter the Territory is held to have entered the Territory if he enters Walvis Bay although South Africa claims that Walvis Bay is a part of the Cape Province , UNITED NATIONS W NATIONS UNIES

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(iii). The territorial Administration controls, elections in Walvis Bay exactly as in any other part of Namibia. Walvis Bay is, aM has "been .since the enactment of the 1925 Constitution's, part of a South West African constituency and not, as widely believed in South Africa, of a Cape Province constituency. Walvis Bay district elects one member of the 18-aember territorial Legislative Assembly and is part -of a larger South. West African constituency for the election of a Member of (the South African) Parliament to represent South West Africa. ^^ i (iv) The constitutional relationships betveen Walvis Bay and the Republic of South Africa are completely determined by the constitutional relationships between Namibia and the Republic. They are entirely derivative in the sense that Walvis Bay's governmental structure, degree of local auto- nomy, etc., are determined as a part of Namibia and not as. a, direct dependency of South Africa or as a part of the Cape. This derivative relationship should follow, of course, from application of the 1922 South West Africa Affairs Act, at least since the 19^ amendment to section 1. But, perhaps due to the fundamental nature of constitutional legislation, it has been provided also by special provision in both South West African constitutions. The first cons tit tit ion, enacted in 1925 , contained a special provision applying it to Walvis BaysyThe present constitution, enacted in 1968 when South Africa could no -longer validly legislate for Namibia, also contains a specific provision which (although apparently unnecessary under South African domestic law) purportedly applies it to Walvis Bay. In summary, the cited South African laws and actions, as well as many more uncited ones , are instrinsically incomptible with continuing South African sovereignty over Walvis Bay. Instead, they demonstrate a continuing course of consistent conduct constituting voluntary divestment of South Africa's title in favour of While it is difficult to establish the exact moment at which the divestment was complete and sovereignty passed to Namibia, a half century of consistent conductois sufficient to transfer title, and the date of transfer is not important. Namibia is capable of acquiring sovereignty over Walvis Bay There is considerable debate, much of it generated by cases involving Namibia, as to the exact nature of an international mandate;^ There can be no doubt, however, that a mandated territory, like other non-self-governing territories, has a legal personality. It may therefore acquire territory even before it achieves full statehood'^'lndeed, if non-self-governing territories wea unable to acquire territory, the Cape Colony would not have acquired title to Walvis Bay, and South Africa could not have derived valid title to it at the time of Union. UNITED NATIONS &g8? NATIONS UNIES

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Since Namibia would, under international law, have attained its independence a decade ago but for South Africa's unlawful occupation of the Territory, there can be no legal impediment to its acquiring Walvis Bay, which adjoins Namibia and has always been associated with the Territory. In any event, the Republic is in no position to argue any lack of capacity on the part of Namibia to acquire sovereignty over Walvis Bay, since South Africa's wrongful acts are the sole cause of any such lack. . Comment of Permanent Mandates Commission In discussing the status of Walvis Bay, Professor Dugard of Witwatersrand University has pointed to the comment of the Permanent Mandates Commission in 1922 that "the territory of Walvis Bay has been treated as if it formed part of the mandated territory, whereas it was not, in fact, included in that territory, v^Professor Dugard infers from, that remark that the Commission _ supported the South African position that "constitutionally it /Walvis Bay_/ forms part of the Republic and not of SWA .... "X^J/ South African constitutional law relating to Walvis Bay may find support in the commission's remark made contemporaneously with the enactment of the 1922 South-West Africa Affairs Act. However, the' present status of Walvis Bay at international lav cannot be determined by a single phrase which alluded to the . first, possibly temporary, step in a course of conduct which in fact continued over 50 years. It cannot be too strongly emphasized that the divestment of South Africa's title is not claimed to have resulted from a single act, but from a consistent course of conduct carried out over many years. Verbal claims of sovereignty South Africa's repeated verbal assertions of sovereignty over Walvis Bay, most recently by Prime Minister Vorster in his statement to larliament^Tcannot prevent the divestment of title by continuing conduct. While statements of this sort may be persuasive when actions are ambiguous or are temporary in their effect, they cannot be permitted to prevail over an unambiguous course of conduct spanning half a century. Just as occupation requires some evidence of appropriation and control to support a claim to unoccupied territory^so the South African assertions of sovereignty over Walvis Bay require evidence that South Africa has in fact acted as sovereign vis-a-vis Walvis Bay over the last half century, rather than voluntarily transferring it to the effective sovereignty of Namibia. \3'fr Rex v. Of fen X/^

There is a statement in Rex v. Offen, similar to that of the Permanent Mandates Commission, that Walvis Bay was not made part of South West Africa by the 1922 South-West Africa Affairs Act, but was merely to be administered as if it were part of the Territory "S$$S UNITED NATIONS fe§£} NATIONS UNIES

This statement, vhich suggestively summarized the 'provisions of .the Act in a f ev words , probably reflected South .African opinion of the inter-War period as to the legal effects of the Act. It vas not, however, determinative of international lav then, and certainly not today. Like other verbal assertions of sovereignty 'or comments on a particular bit of domestic legislation, it cannot prevail against South Africa's continuing, consistent conduct in divesting itself of title to Walvis Bay. i Hamibian attitudes

It has been alleged that Namibian themselves have not claimed Walvis Bay as part of the Territory.

This allegation is not true insofar as it suggests that Namibians are not concerned about the future of the enclave or that they do not universally believe that it must be part of Namibia. The major African political groups have all insisted that Walvis "Bay must be part of NamibiaY

However, as the allegation suggests, most Namibians, who are not trained in international law, have not challenged the South African position as to the present legal status of Walvis Bay. Until recently, indeed, the question of legal status must have seemed rather academic to persons who were subject to the same South African apartheid regime, whatever the status of the enclave.

In any case, as people wrongfully subjected to South African occupation, which prevents them, from having a freely elected government which can enunciate claims for them, the failure of Namibians to claim title to Walvis Bay should not prejudice their rights. .

It is, however, unfortunate that the OAU, the United Nations, particularly the Council for Namibia, and the United Nations family of agencies have not j challenged South Africa's claim to sovereignty over Walvis Bay. This failure can be attributed to the force of habit and to the gradual nature of the ! process of divestment, which may not be apparent during its course until the change has irrevocably occurred.

These bodies should now recognize the change of title and alter their legal positions, their publications, and their data accordingly.

South African military base at Walvis Bay

Only one action by the Republic might possibly be construed as demonstrating South African sovereignty over Walvis Bay. That is the open establishment and UNITED NATIONS WJjjb NATIONS UNIES

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continuing operation of the' sizeable Rooikop military base at Walvis Bay. It provides desert training for South, African recruits in the dunes of the Namib within — and possibly outside — the enclave. There are artillery ranges attached to the base, as veil as a military- airfield (the latter distinct from the civilian airport that serves the Walyis . area ) In this connection it may be recalled that Article h of the Mandate Agreement prohibited any military or naval base or fortifications in South West Africa. Rooikop is not, hovever, the only military base openly established and maintained in Namibia. The Memorials of Ethiopia and Liberia submitted to the International Court of Justice in connection with the South West Africa Cases refer to United Nations documentation on other bases established at about the same time as Rooikop^Most significantly, South Africa has for years maintained an unhidden army base at Katima Mulilo in the Eastern Caprivi Zipfel, on the northeastern border of the Territoryi^£outh Africa's mainte- nance and operation of these other bases inside Namibia constitutes a clear act of defiance, of the international community. Consequently it would appear that South Africa's operation of Rooikop need not be construed as an Act of sovereignty over South African territory, but rather as one of a related number of acts of defiance of the international community in relation to a part of the Territory of Namibia. It should.be added that last year Per Spiegel^j'evealed the existence of an enormous secret military base near Grootfontein^ which is probably considerably larger and better equipped than Walvis Bay. The construction of this and other, smaller, hidden bases, the presence of which has been revealed by Namibian freedom fighters, is alleged to have been begun before the coup in Portug In the context of this second round of military expansion during a period of ostensible peace in southern Africa, the operation of the Rooikop base seems to be far more closely related to an overall military-political strategy for the areeN^han to a single act of sovereignty opposing an overwhelming pattern of consistent and continuing divestment of title. South African motivation Finally, in considering the course of South African conduct vis-a-vis Walvis Bay and Namibia, it seems appropriate to examine the Republic's motivation therefore as relevant to an evaluation of the international effect to be ascribed to it. Insofar as it is possible to determine that motivation, it appears to be basically two-fold. --- — -- In the first place, there is the element of convenience. It is easy and inexpensive and probably more satisfactory to the white electorate to govern Walvis Bay as a part of Namibia since it is contiguous to the Territory, forms \ an integral economic and geographical part of the Territory, and is hundreds j of miles from South Africa.Sjf^ ! I i UNITED NATIONS ^gg$ NATIONS UNIES

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Secondly, and probably more important in the long ran, until very recently- successive South African governments cherished the political illusion that, despite the mandate and vorld opinion, South Africa would sooner or later annex Namibia; Walvis 'Bay vould thus be ultimately returned to South African sovereignty as part of the fifth (Namibian) province.

4 It may be remembered in this connection that the Union expected to annex South West Africa after the First World War^t/During the life of the League it gave every evidence that it considered the mandate, against which it argued long and hard at the Peace Conference, as little more than a disguised form of annexation^^T^-t attempted again, at the first session of the United Nations, to obtain permission to annex the Territory. When that was denied^bhe Union government ended its reporting on the Territory and sought to achieve annexation in fact, if not in law — one of the charges made by Ethiopia and Liberia in I960. As late as 19^9 — three years after revoacation of the mandate — South Africa was still .engaged, in. .revamping the constitutional, structure, of .Namibia _ in order to bind the Territory more closely to the Republic administratively, legislatively, and financiallyN^>/f The fact that South Africa did not read the political future of southern Africa correctly cannot change the motivation of its past conduct: South Africa intended — as part of the process of -gaining the greater'prize _ — to ._ yield its sovereignty over Wai Vis Bay to Namibia. And it did so.

Vithdrawal of self-determination- The history of Walvis Bay distinguishes it from other territories annexed by the Cape Colony

These other territories were all contiguous to the Colony itself or to areas which subsequently became part of the Cape. In due course they were either fully assimilated into the Colony, gaining traditional local government and Parliamentary representation or else they became part of what were, in that day, called "native reserves" — now "Bantustans" or "homelands". Walvis Bay was "different. It was some UOO miles from Oranjemund, the nearest point of the Cape Colony, and nearly double that distance from Cape Town, the seat of the colonial government. It was a tiny enclave, largely desert, inhabited by a relatively small number of Africans who had nothing in common with the governing class in Cape Town. The only whites were there to protect fishing and sealing rights and other commercial activities against encroachment, primarily by Germans in the Protectorate. Walvis Bay was not subject to legislation enacted by the Cape Parliament, or later by the Union Parliament, unless such laws were made applicable to it by proclamation of the Governor-GeneralNi^And the G overnor-General continued to have and exercise the power to legislate for Walvis Bay by proclamation UNITED NATIONS |^| NATIONS UNIES

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When all these facts are set against the criteria established "by the General Assembly as to whether a territory is non-self-governing^/walvis Bay must be held to have been, from the outset, clearly and indisputably a colony, first of the Cape of Good Hope and later of the Union.

There is, indeed, no more conclusive* evidence of the non- self-gover n ing status of Walvis Bay at the time the mandate vas created than the manner in which Walvis vas affected by the South Wes"t Africa Affairs Act of 1922. By this Act Parliament, without consulting the enclave, casually incorporated it into the South West African mandate. Prime Minister Vorster's recent statement that the government — again, apparently, without consultations — is now thinking of repealing the Ac^presuraably because he believes thereby he can undo its effects) represents a continuing colonial mentality.

While the method of enactment of the 1922 Act and the Government's cavalier attitude demonstrated that Wai vis Bay was indeed a colony, the substantive provisions of the Act in fact granted the enclave a substantial degree of self-determination by integrating it with Namibia. ~

The integration of Walvis Bay into the territory could not fully meet the standards of General Assembly resolution 15*H (XV) (i960) since Namibia was not itself an independent. state and the 'integration was not the "result of the freely expressed wishes of the territory's /i.e., Walvis Bay's/ peoples,..." Furthermore, any equality between the people of Walvis and the people of the mandate was in fact the equality of lack of rights, as South Africa administered both, before and after integration, for the benefit of whites only. Nevertheless, the integration of the two areas did, as indicated below, reunite historically related areas and did.bring together persons of common cultural, social, and economic interests ii^/There is every reason to believe that an independent Namibia will extend full civil, political, and other rights to the people of Walvis Bay as an integral and vital part of Namibia. It is perhaps not without symbolic significance that the internal wing of SWAPO held its most recent conference in Walvis

It is on the b

The recent statement by Prime Minister Vorster that his government may repeal the South West Africa Affairs Act of 1922 suggests that he believes that South Africa can, by such repeal, end the integration of Walvis Bay with UNITED NATIONS fitf& NATIONS UNIES

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Namibia. Such a lav vould,-of course, "be clearly void at international lav since South Africa has been unable, since the revocation of its mandate, to validly legislate for or concerning NamibiaV^/It would be equally invalid under United Nations jurisprudence insofar as it attempts to diminish or eliminate the self-determination already attained by Wai vis Bay. * Among the basic aims of the United Nati6ns, as set out in the Charter, are the political, economic, social, and educational advancement of non-self- governing territories and the development of *free political institutions and self-government for thenu^These goals are elaborated on in the "Declaration regarding Non-Eelf-Governing Territories," adopted by the General Assembly without dissenting vote on lU December 196d^/rhis resolution has been repeatedly reaffirmed and enlarged upon in succeeding years. Since this series of resolutions, along with Article 73, which is binding on all Member States, clearly obligate United Nations Members to work positively for self-determination for all colonial territories , it is self-evident that it must prohibit the withdrawal or reduction of self-determination once attained. Thus South Africa -is barred by -United Nations— law_from. attempting to undo the integration of Walvis Bay with Namibia and to again exercise sovereignty over Walvis Bay.

One final point may be added to the argument based on self-determination: In the absence of major social, political, and economic changes in South Africa by the time it withdraws from Namibia, an end to self-determination for Walvis Bay through its return to South Africa would undoubtedly entail the subjection of its inhabitants to the full theory and practice of apartheid. They would not, of course, be so subjected if they were part of an independent Namibia. In view of the advice of the International Court that

to establish ... and to enforce, distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which constitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of the Charter

it would be unconscionable and contrary to the Charter to hold that the potentially apartheid-sfree self-determination of Walvis Bay may be ended by its return to South Africa's apartheid regime.

Namibian "territorial integrity"

The United Nations has opposed the application to Namibia of "separate development" theory and practice ever since the concept was first introduced there in the '60's through the so-called "Odendaal UNITED NATIONS &&&) NATIONS UNIES

The Plan expressed the nov familiar ideology that each "people" or "nation" (as determined "by South African administrators) should be allowed (in fact, required) to be physically separate from all other "peoples", to be separately governed, and to deal vith their problems separately, regardless of their common interests. It blended colonial divide-and-rule tactics vith neo-colonial patterns of domination of economically veak or unviable entities. '• .

The United Nations has attempted to bar fragmentation ("Bantuization") of Namibia under the Plan, and has particularly called on South Africa not .to implement its Native Nations Acrvby the creation of African "homelands. "

In so doing the United Nations was adhering to a basic principle established by General Assembly resolution 1511* (XV) (i960), the "Declaration on the Granting of Independence to Colonial Countries and Peoples." Operative paragraph 6 of that resolution, which has been reaffirmed annually, states that ."Any-attempt, aimed at the-partial or total disruption of the national unity and territorial integrity of a country is incompatible vith the purposes and principles of the Charter of the United Nations."

In relation to Namibia particularly, both the General Assembly and the Security Council have made it clear that territorial integrity and national unity are goals on a par with self-determination and independence for Namibia — since without the former, the latter are not possible. Independent Namibian ministates, even as relatively rich and populous as a "greater Ovamboland" might be, are not acceptable as a South African alternative to Namibian independence as a whole: in the first place because they could not themselves be truly viable, independent states; and in the second, because their excision from Namibia would make impossible the independence and via- bility of the remainder of the Territory.

The excision of Walvis lay from Namibia would be as great an assault on the principle of Territorial integrity as the excision of any other part of the Territory. Economically it might be a far more serious threat to the possibility of true independence for the Territory after South Africa's withdrawal than the excision of some other parts of Namibia vauld be. Excising Walvis Bay would, for all practical purposes^ leave the territory a land-locked country: Its only real outlet to the world would be in the control of the power which had wrongfully occupied it and would have every interest in maintaining economic domination of its former mandate. It is too much to expect the Republic, after Namibian independence is realized, to operate Walvis Bay so as to benefit the country from which it has been forced to withdraw.

It must be reemphasized there that no other Namibian port can be substituted for Walvis Bay. The Germans spent substantial sums of money from UNITED NATIONS |gg/$ NATIONS UNIES - 15 -

1881* to 1915 to try to build up Swakopmund, which was safely in their hands; but it was never a successful alternative. The physical shortcomings of Luderitz, a far smaller port, are so great-that no amount of capital — if it could be raised — could create a port with costs competitive with Walvis Bay, particularly if the South Africans wished to force Luderitz out of business Walvis is, moreover, the natural port for most of NamibiaTs main exports, fish (except "rock lobster" caught around Luderitz), karakul pelts, and minerals and ores, which are most heavily concentrated in the central part of the country. Beyond the importance of Walvis Bay to Namibia, of which it is an integral part, is its potential importance to Botswana, Zimbabwe (Rhodesia), and southern Zambia. It is estimated that an extension of the Walvis-Windhoek rail line 500 kilometers beyond its present eastern terminus of Gobabis, would make it possible for those three countries to ship via that line to Walvis, a major Atlantic port, which could be expanded as needed^/These countries would have little incentive to participate in such a railroad project if Walvis Bay were to be controlled by South Africa, which already dominates the area. With Walvis Bay a recognized part of an independent Namibia on the other hand, the railroad project would contribute to the mutual strengthening of the countries concerned; to their decreasing dependence on South Africa; and to their increasing ability to comply with United Nations anti-apartheid resolutions calling for an end to political and economic ties with South Africar^' Walvis Bay has, from its earliest recorded history, been integrally related to the Namibian hinterland. It was part of that large sector of Namibia which, scientists believe, had been occupied by Namas for hundreds of years before the Portuguese reached the area. The Namas in Walvis must have been in close contact, across the desert, with the people on the central plateau,for the port became a watering and revictualling stop for Antarctic whalers. Yet the settlement itself clearly could not have supplied adequate foodstuffs except by trading with the interior. Annexation of Walvis Bay by the Cape Colony represented a political and legal interruption of the natural economic, geographic, and cultural relationships which bound Walvis Bay to then South West Africa. This was recognized by South African authorities just as soon as they occupied the German Protectorate. They immediately placed Walvis Bay, a friendly area, under the same martial law regulations applied to the hostile Territory on account of the convenience in administering "contiguous" areas'^s/Tt was recognized in peacetime as well when, less than two years after creation of the mandate, Walvis Bay was administratively, legislatively, and judicially integrated into South West Africa, so that even its people were treated as inhabitants of the Territory. It is igjj

UNITED NATIONS Ijjj NATIONS UNIES

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• •«„ of Walvis Bay from Namibia would destroy/

and independent state. I/ Wolfish Bay and St. John's River "territories Annexation Act, No. 35 ~" of IB8U of the Cape of Good Hope; Proclamation of 7 August 188U by the Governor of the Cape of Good Hope, 75 British and Foreign State Papers (hereinafter "BSP"), (Documents reproduced in Appendix A.) See also South Africa, Report of the Commission of Enquiry into South West Africa Affairs 1962-1963, R.P. No. 12/196H (hereinafter "Odendaal") , paragraphs 21, 30.

2/ Extract from statement circulated as United Nations document S/12062. *_ 3. Ibid. - \ • i U. Ibid; see infra, p. 1*. _ '

5/ Wellington, J.H. , South West Africa and Its Human Issues (hereinafter "Wellington") 119 (Oxford 1967); Odendaal, para. 31.

6. The southern boundary line was disputed for many years, an important issue in the discussion being whether nautical or statute miles were used in the description of the area. See infra, p. U, as to the resolution of the dispute. ^

7/ Supra, n. 1. .

8/ Wellington 119-21; Johannesburg Star, 7 June 1975.

9/ Wellington 118-19; South Africa, Economic , Financial and Statistical Year- Book for the Republic of South -Africa (hereinafter "Year-Book") 301 (Johannes- burg 1973).

10/ Wellington 110, 118-21; South Africa Department of Foreign Affairs, South West Africa Survey (hereinafter "Survey") 53; Johannesburg Star, 7 June 1975; Rand Daily Mail, 28 April 1976. For more recent statistics see 1973 Year-Book 301-02 and Survey 53. ll/ Wellington 158-59, 165-67; Odendaal, paras. 10, 16.

12_/ Proclamation of 12 March 1878 by the Governor of the Cape of Good Hope, 69 BSP 1177- (Reproduced in Appendix A.) • 13/ Dated lU December 1878, 70 BSP 1*95- (Reproduced in Appendix A.) lU/ Supra, n. 1.

15/ Odendaal, paras. 19-21; Wellington 167-73. l6/ See AWARD of Don Joaquin Fernandez Prida, Arbitrator in the matter of the Southern Boundary of the Territory of Walfisch Bay-Madrid, May 23, 1911, Parliamentary Paper, "Africa, No. 1 (1912)," Cd. 5857, 10b BSP 50. - 2 -

IT/ Odendaal, para. 30.

18/ Proclamation No. 12 of 1915.

19/ Act Ho. 2U of 1922.

20/ Proclamation No. 1**5 of 1922 (Union). (Reproduced in Appendix B.)

21/ Document reproduced in Appendix B. « 22/ New subsection (U) substituted by Act No'. 28 of 19M, sec. 1.

23_/ R. v. Akkermann, 1951* (l) S.A. 195, 196 fe.W.A.).

2V , See Customs and Excise Duties Amendment Act, No. 35 of 1921, sec. 27-

25/ Act No. 25 of 1969.

26/ R. v. Akkermann, 1951* CD S.A. 195 (S.W.A.).

27/ South-West Africa Constitution Act, No. k2 of 1925.

28/ Government Notice No. Ul of 1926, in vhich the names and boundaries of the electoral divisions of South West Africa for the first elections held under the 1925 Constitution were published, describes electoral division No. 9, Swakopmund, as including Walvis Bay (by reference to the magisterial district of Swakopmund as defined in Proclamation No. 30 of 1922, sec. 1 (see supra, p. 5)). Walvis Bay has been included in a South West African constituency ever since. See Johannesburg Star, 7 June 1975*

29/ Act No. 1»2 of 1925, sec. ^3 (a), subsequently sec. ^3.

30/ Act No. 39 of 1968, sec. 36.

31/ International Status of South-West Africa, Advisory Opinion: I.C.J. Reports 1950; South West Africa Cases, Preliminary Objections, Judgment of 21 December 1962: I.C.J. Reports 1962; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971.

32/ Ibid.; Jennings, The Acquisition of Territory in International Law 11 (New York 1963); General Assembly resolution 1511* (XV) (i960).

33/ League of Nations, Permanent Mandates Commission Minutes III, p. 325 (Annex 13).

3V Dugard, "Legal Aspects of Investment in Namibia (South West Africa)" 209 in Study Project on External Investment in South Africa and Namibia (S.W. Africa), The Role of Foreign Firms in Namibia (197*0.

35/ Supra n. 2. - 3 -

36/ Island of Palmas, Permanent Court of Arbitration, 1» April 1928.

37/ 1931* S.W.A. U, aff'g 1931* S.W.A. 73.. 3_8/ Id. at 6-7. • 39/ SWAPO (Washington Post, 2U April 1976, P- A-10); SWANU, Chief Kapuuo (Rand Daily Mail, 28 April 1976); Coloureds (Windhoek Advertiser, 13 May 1976). Windhoek Advertiser, 13 May 1976. Wellington 121; Johannesburg Star, 7 June 1975- Rooikop base is 11 miles from the port, situated along the eastern boundary of the enclave. The South West Africa Official Gazette periodically publishes warnings to civilians concerning pending "artillery practice at the Rcoikop artillery range. Wai vis Bay is also used as a naval base for South Africa, along vith Simonstown (Cape) and Durban. Schieber, "Apartheid under Pressure: South Africa's Military Strength in a Changing Political Context" in. Africa Today, January- March 1976, p. Ul. South West Africa Cases, Pleadings, Oral Arguments, Documents, Vol. I, I.C.J. 1966, pp. 181-83. U3/ Schieber, supra n. Ul, at Uo refers to the strategic air force base at Mpache in the Capri vi Strip. - 27 October 1975- frg/ Allegations by SWAPO representatives. See 'the Defence Amendment Act, No. 1 of 1976, in vhich the existence and nature of such an overall military-political strategy for the area is implicit in the changes made in the Defence Act, No. kk of 1957- See also Government Notice No. R. 6l8 of 1971*, General Regulations for the South African Defence Force and the Reserve, section 1 (ix) of vhich provides that "'the territory', means the territory of South-West Africa and also the port and settlement of Walvis Bay and the Caprivi-Zipfeli" o U7_/ See, e.g., Proclamation No. 12 of 1915; Carroll, South West Africa and the United Nations 2, n. 1 (Lexington, Ky. 1967). Slonim, South West Africa and the United N ations : an International Mandate in Dispute (hereinafter "Slonim") 12-38 passim (Baltimore 1973); Dugard (ed. ), The South West Africa/Namibia Dispute (hereinafter "Dugard) 2Q-lk passim (Berkeley 1973).

Sagay, The Legal -Aspects of the Namibian Dispute 13-15 (Univ. of Ife Press, Ife, Nigeria 1975); Slonim 50-55; Dugard 75-82, 89-91. 50/ General Assembly resolution 65 (l) (19^6). _ u -

South West Africa Affairs Act, No. 25 of 1969. J2/ E.g., St. John's River Territories. See supra n. 1, and Appendix A. 53/ See Act No. 35 of 188U of the Cape Colony, reproduced in Appendix "A. By the Proclamation of 7 Aguust l88*» (reproduced in Appendix A) existing Cape law was applied to Walvis Bay. See Rex v. Offen, 1931* S.W.A. 1», 6-7. • 4 See General Assembly resolutions 567 (Vl), 6U8 (VII), 7^2 (VIII), and 151*! (XV). ; See n. 2 supra. Infra p. 16.

On May 29-31, 1976. See Advisory Opinion 1971, supra n. 31. Charter, art. 73 (a), (b). General Assembly resolution 151*» (.XV) (i960). Advisory Opinion 1971, supra n. 31-» 'para- "131. Supra n. 1. Development of Self-Government for Native Nations in South-West Africa Act, No. 51* of 1968. See General Assembly resolutions 3399 (XXX) (1975); 3295 (XXIX) (197*0; 3111 (XXVIII) (1973), etc. Security Council resolutions 385 (1976); 366. (197*0; 301 (1971); 26k (1969). See supra p. 3 and n. 10. Windhoek Advertiser,. 27 April 1976, reporting a. speech by Mr. Derrick de Villiers, United Party member, in Jarliament on 26 April; see also id., 9 April 1976. General Assembly resolution 176l (XVII) (1962), and subsequent resolutions reaffirming and expanding its provisions. Proc. No. 12 of 1915.

7 June 1975. Appendix A

6-V.

CHEAT P.HITAIX. 1177 !,•!>.'• ../:V • "'*\

i * * JililTlSM PROCLAMATION, tukiny possession ofthtPortor .

ru-.iCi.AM ATI ox by Richard Cossautinc Dyer, Esquire, "Stall-Coin*. niaiidcr iu ronmi.ind of Her Majesty's ship Int/utby, :it present Iving at anchor oil' the Port or Settlement of Wullisch Hay. ^ WIIEKEAS it is expedient that the Port or Settlement of Walliich Ifcn , together \vith :t icrtaiu portiou of the territory summit Jiug the yjiiu1, shall bu lakcu ijosst'ssiou of on btih:ilf of Her Britannic Jlajc*ty Queen Vieloria, Jiud, subjei;t to the. pleasure of Her .n Jtajvsty iu tliat bcLnlf, be dci-larud a depentloney of tbe United .t Kingdom of Groat Britain and Ireland: ?To\v, therefore, I, 3tiehard -J Cu.-santiue Dyer, the otficer iu conniuincl of Her Majesty's ship LtJustrif, at present lying Jit anchor off the said settlement, do, in tiie name of Her .-aid Britannic Majesty, Queen Victoria, take possession of the-sa'd port or settlement of Wallisch Bay, together— witb the territory hereinafter described and defined, in token whereof I have this day hoislud tbe British flag over the said port, sciUeineiit, aud territory, and 1 do proclaim, declare, and make known that the sovereignty aud dominion of Her said Britannic Majesty shall be and the same arc-hereby declared over the said port, settlement, and" territory of Walfisch Bay ; and I do further proclaim, declare, aud make known that tbe said territory of \ValIiseh Bay so taken, possession of by uie as aforesaid shall be bounded as follows: that is : i : i . f;.ai•• j....- '• to say, oil the south by a line from a point on the coast 15 miles south of Pelican Point to Scheppmansdorf; on the e:isl by a liue y^r^ from Suheppmausdorf to tbe Ixooibauk, including the Plateau, and Ihvuce to 10 miles inland from the mouth of the iSwakop liiver; on liic uurth by the last IU miles of the course of the said Swakop liivoi. 'J'lus Proclamation of Her Mnjesty's sovereignty and dominion thai1 take eflcct forthwith, but shall be subject to Her Majesty's Knici-.-na confirmation ami disallowance. God savn the Queen! - Given under my Laud and seal at "\Valfisch Bay, this 12tb duy of March, 1»78. lUCUAED C. DYEK, Staff-Commander in command. Kl^l ': ff {d.?t '"{''•!- hi . ' S&ilti- • Rnlificd and confirmed bv Lcllunt 1'nlcnl dalfd December 14, 1S78. • P ?i!;| Itself not to increase tie'quantity of the second issue notes, already fised by Decree, nor that of the third issue notes ; not to suspend the redemption of any of these classes of notes, and not to impose any 'surtax upon the 15 per cent, maritime import duties- which is allotted to the redemption, of both, the classes' of notes/ until the two issues shall nave been completely paid off.- • •••• • •• • YIII. In case tbe' Govemm'ent of Salvador, in'proceeding id- arrange •with its ovnTor with foreign'sub]ech for the verification- of losses suffered through the same cause, should grant them iriore- faTonrable" conditions than those' stipulated, the same conditions- become ip*6facto applicable to Italian subjects.';•" '•' -•''';- ''•''•' . ''"' '''• In faltn whereof we sign the present Convention in, duplicate1 copies of the'same contents, and seal it vritli our p'mate seal. .' : • - .--•-;.-,-"•• --:•-.- = (L.8.) - MANUEL CACEEES.:~ •'•*•'---• : . '^A'. :.:;.- -•-•<; (L.3.) G. ANFOEA LICIGNANO.

BRITISH LETTERS PATENT, for tTie Annexation to the Colony of the Cape of Good Hope of the Port or Settlement of Walfisch Bay, on the West Coast of South Africa, and of certain Territory surrounding the same,—Westminster, De~ ctniber 14,1878." . "" . . ' ' ' "• -...'••

VICTOBIA, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, Empress of India: .-To all to whom tHese presents stall come, greeting: . - _. *_ .. :.'.-.._-. "VTHEBEA3 the port or settlement of "Walfisch Bay, situated on tie AT eat Coast of South Africa to the north of the Tropic of Capricorn, together with, certain territory surrounding the same, and bounded as follows, TIZ. :—On the south by a line from a point on the coast 15 miles south of Pelican, Point to Scheppmausdorf; " on the east by a line from Scbeppmansdorf to the Eooib.int, including the plateau, and thence to 10 miles inland from the raouth, of the Swakop River; on the north "by the last 10 miles of the course of the said Swatop River, and on the vrest by the Atlantic Ocean; was, on tbe 12th, day of March, 1878,* by ProcLuuatioa

jV^^r :.r£ *c^3t^^ ^ ••^V';' — ^.vJV. •--,', f •»'.-• ^r :c^' rv.V vi*.I:-? "AK'Vt- «.-:.v..- js.

• • *som. - e casea expended, i means of sai patrimonies pence nnd cc I feel, « iiE^t:-:. con>e before [IS7.S-TJ*. r. - •. f 1 J-JVt T"lXl-*?> » - —J-- ' ''** J-^Y"1'— ' ' If- •*««• Jr !•'. ^ ;«"•*! CHEAT UJRITAIN (C'fl^C of G'oorf If Ope). 407 !! 1 : *• •innent a* unay j>Jlf)('LAMATJON by the Governor of the Cape of Good Jhpe !{'•';>;•/ ty: uiitl Iliyh Commissioner for South Africa, unncxiiiy tValjlsh '• ~.\ "-S j hold tlirtrn as ; (o anollicir in^. Jiay to the Colony of the Cape of Good Hope. — Avyust 7t ' &;.'S " Ibis foundry, IKS*.* - "i S " ^ • i f :t:-'-S the coiinluy of l'i;..ci.AM.Mio:r by l»is Excellency the Jtight- Honourable Sir- • •-•• ! •i'' '• ^ the work Mrivnlrs George Itobcrt Itubinaon, a r>Ieiuler of Jlcr ^raje.sty'a ' '• •• ; JlJ--v^ «/ mpost' Mii.-il. Honourable Privy Council, Knight Grand Cross of tho • :ti v•. ; • .«'. he laws ofttlio 3i.-.--l Distinguished Order of t>aint Michael -And Saint George, Ir^: f : . . j* ("JoViTiiur and Coinniandcr-in-ehiof of Her Majesty's Coluuy of i J, to originate UK- Cape of Good Hope in South Africa, and the Territories and . ' " *• "" "*' •he Courts acnd D.-jK-nilencies thereof, and of Tembulai-d, Emigrant Tambookic- ' | L: •' > ;; "" aud authority land, ]'ymvaualaud and Galcknluud, and Her Majesty's High \ i [ J'-->"; Commissioner, ^ «'f Good Hope of the Port or. Settlement .-of "U'alfL-h J3ay on the - i: i '-.'f :'.''• :SIOA. A\"est Coast of Africa, and certain territory surrounding the same, 4 \ "-'-- and of certain British territories in tliu St. John's River in South ] '11 •": ' . rSTUGAllE.' Africa," that from and after such day as the Governor shall, pur- i':; [; • • • :.' euaut to the powers in that behalf contained in Her Majesty's Letters Patent, bearing date at Westminster the 14th day of • •" * • December, 1S7S,J by Proclamation under his hand and the public , - J * • Ji OA. seal of this Colony, fixed in that behalf, tho Port or Settlement of •r ' -'••* AValfish Hay on the "West Const of Africa, and certain territory .r:-- •.•••'. •$ i=ummndiiig the same, tbc limits of which tiro defined in the Letters • •' "• ; i ""• i J'aU-iit aforesaid, shall become and be part of the Colony of the : '• r .'. •. '• ' '• j , • V • Caj.Hj of Good Hope, and subject to the laws in force therein, except t ,* ' * . .•is l!)o application of the same to the said Port or Settlement of .. I •; l^ '- • • ; A\ allUh Hay and certain territory surrouuding the same may bo " ', :»(»lificil by any such Proclamation ; .. ' ' '-;- .Now, therefore, I, the Governor aforesaid, under and by virtue of ,1 ..-••. tin: powers aforesaid, do hereby proclaim, declare, ami make known, ; lif' . •*•' thai ] have fixed the date hereof as the day from aud after which ".' •- •" . "• - t i lla-'viiil Port or Settlement of "Walfish Bay and certain u-rritory ••• ; -! * • • " ' 1f Mirrfj (.he same, and included under the following limits, -that *il '" m\ - -:|1 t': ' »s to .-:ay : on lhe° south by a line from a point ou the coast 15 i '•1 miles south of Pelican Point to Scheppman's Dorp; on the cast by a ! j;..- •...'• * J. * . ' limrfrom Sciieppuiau's Dorp to the Eooibauk, including the pin ten n. .'-'.. I ami tltcncc to 10 miles inland from the mouth cf the Swakop Hiverj * C:ijic >f (jnotl IIojw Government Gi>7,c(1e, August. 8, 1SS-1. FV .'*• t 1'ugc 40*. i ; -S^-c IWuiaalion-of March 12, 1878. Vol. LX1X. Pago 1177. *' • A1 ,. « '• /I : ' (A

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U ;:-••' 40S i;RiiAT (CVy;e o/ Ci'ood Ifopc).

on tbo north by the last 10 miles of the course of the Swaliop Jlivur, i.. ,., I liwl on llic west by the Atlantic Ocean, shall, under the name, M-i'S ik-bi^natitiu, and title of Wallah J'ay, bccuinc and be part of tliu '. ••' Colony of the Cape of Good Jlope, and subject to the laws iu force therein. 2^. 1 do further proclaim a Court o[ Jlcaident Magistrate lo bo erected, constituted, and established for and within the said territory of *W;il fish Bay, and the said Court shall be holdcu by and before tho [Resident Magistrate for the territory aforesaid. God Have the Queen! ("liven under my baud and the public seal of the Colony of the Cape of Good Hope, this 7th day of August, 1331. (L.S.) llliHCULES KOU1NSOX, Gowtnw. Uy command of his Excellency the Governor in Council, THOMAS Um'QTOs.

ACT of the Government of the Cape of Good Hope, lo provide. for the AiuiKcation to that Colomj of the Port or Settlement < i. i. f of ITulfish 13aij} on the ll esi Coast of Africa, and of certain !••;•- Territory surri>v.ndiny the same, and of certain British "... A -:-W|Ai Territories on the St. John's River, in South Africa. f-:o:: [No. 35.] - [Abscntcclto July 22, 18S4.*] 1..0" "WiiEitEAS it is expedient that the Port or Settlement of Walfish r: Bay, situated on the west coast of South Africa, to the north of tho Tropic of Capricorn, together with certain territory surrounding the same, and bounded as follows, viz.: on the south bj- a line from a point on the coast 15 miles south of Pelican Point to JJcheppiaaiis- dorp; [on the east by a line from .Scheppmausdorp] to tlio Uooibank, including the plateau, and thence to 10 miles inland from the mouth !' C--: of the Swakop Jlivcr; ou the north by the last 10 miles of the »». J. Ijil course of ihe Kaid Swakop Hiver, and on the west cuast by flio i Atlantic Ocenu, be uunuxeJ to this Colon}'; and whereas by Her Majesty's Loticrs Patent, bearing date at Westminster the 1-JUH •M)!I *j'; day of December, 1S78, and passed under tho Great Seal of tlie Uifited Kingdom of Great Britain and Ireland, the Governor ior tlio time being of this Colony was authorized by Proclamation under his band and the public seal of this Coloiiy to declare that, from and after a day to be herein mentioned, the said Port, Settlement, anJ territory, as in the said Letters Patent described, should be anufioJ * Promulgated July ^ 1SS5,

' v i-,i j 0 ;.;.-.*.«• ' 'CHEAT DHITAIN-.(Ca;;c of .Good Hopc}t, "' 409. \ And lurlhcr whereas it is cx[)C-

Legislature of this Colony should have passed a law providing that tho ••" enid territories'shall, on the day aforesaid, become part of this Colony • and subject to tho laws in forco therein: and provided also, that tbo application of the s.-.id law* to tho said territories Might be "". or by any law or'laws islature of this Colony annexed: And whereas 3" euncted_ providing that the - be mentioned in that behalf in n Proclamation or Proclamations of the Governor as aforesaid part of this Colony;. Ee it enacted by the Governor of tho'. :"--•'• i of Good Hope, with the advice and

•\Yainsh Bay on the West V.".^v?V:': :beppinan3-:!-;;V;£. £i-'.^ •-_ . C'.-i>; of Africa, and certain territory urroundinsurroundign the saine, the * -.' .*rS i Rooibank/.£-^;--\r':' -!iuhj of wJiieh arc defined, in the Letters Patent of the lith'-'•'.;/.;^\'" •' »*: !*- ^i -. J)fxvm!)L-r, 1S7S, aforesaid, and the said British territories on'tha'.';;'.";..^. •'.: St. Jw'iii'a Jihor, with the limits aud name iu any such Proclamation»v • -."':•; jiniutlci!, bliall respectively become and be part of the Colony of the x' •-;'."'/ •M by Her;.;-.;;;..^ . •: ^. C*.-»j»c of Good Hope, a:id subject to the laws in'force therein, except ". .•.*.•":''.', r the 1-ith •""''- a.i tlio npiilicntioii of the same to the said respective territories may .:* :':.-T j Seal of'tho' lii ntfdilicd by «uiy such Proclamation; K.. '••- •

.-1. 0 • ' .• . • . •...• •,%*••„'•• - • y •««. .' .. . .•••••••. ''•• '.'.:•/• ;•!.•;.•Iv '•'•• * * :rii*v<1, amended; nud'tnodifiocl, nnd new laws applicable lo'tb'q BftidV^f-^i''' \ym JIajcsty's Govcrnm British subjccts'.'cc Convention;* •;.' Notico is herebj "who way have claiu dcsiro to liavo laid with the provisions James deYismesD claims, together wit tion in support the . Commissioners. . [Further notice the Commission.*

BRITISH NOTI1 pr'.?, and Ticrsons residing and being, within tho territory of St^j-yjgrv'Jr'^'X . of Hie Mixed Joj:t*:« River so to be annexed as aforesaid. •' ' »••••"•• * v'.'^i'^^Ju I",: was held at •:.. This Act may be cited as the " "\Valusb. Bay and St. John's ^"^i-Arlif::•'•.'•'.'' .= :' Claims must be Tllvcr Territories Annexation Act, 1SS4-." • . ' ' •' .• \1.6:^Vvl'v-; ;.: ..'

IT is hereby "no NOTIFICATION, respecting the Presentation o/,-:>^v; Principal Secretary Rrilish Claims ayainst Chile before a Mixed Commission at^~^l; despatch, from. Hei Fanlittfjo, and the Appointment of a British Agent.—~]£.-,j.i[.> General at Santia London, April 8, 1884.* -'•' • ;" .'. ' *'• ' -.'.*• .- : '''''"&£&'. Arbitration on Brlti . *.,".*• . •" " • ".*.••** B*'******^*. " • . ™•*• * ••"* , •*" !%* •!•.*,••J '• ' * constituted itself nn< hud therefore, in ace \Vii]:niiA.s there.-was concluded between Her-Majesty and tbe' t'^.v.j the Convention, Brit: Preriucat of the Chilean- Republic, on the 4th" January, 1SS3, a.. ,\.~i;, months £rom that da .Oo!v;oul:on for tho settlement, by. means of a Mixed International r,?;-^ Foreign Offico, A Coiv.ur.ssion, of tho claims of British subjects arising out of the acts :-_:..;?;-i :mc cpcvations effected by the forces of the Chilean [Republic in the „;.•>.[>'; terrl'.oricg and coasts of Peru and Bolivia during tho then oiisthig .":»y.r- NOTIF '.Jbe Articles of tbe. Convention are as follows:—. ;. Ltmlon May 2, riTtre:

LECOMTE, 7'T. Gouverneme: ;cd at Sau'.ingo on the 2nd June, 1SS3; '-."_'-. ••• .'.'. " • ii tcusious de la • vrliercas James do Yismes Drummond Hay, Esq.j C.B., * Sco K( Appendix

BY HIS ROYAL HIGHNESS THE GOVERNOR-GENERAL.... ' .. No. 145 of 1922.] •' ' [U.G., 15th September, 1921 •- '-•' • ' • ' ' ' [G., 15th September, 192Z ;. ;• ... • . • * ' . - •• •• " ^. WALVIS BAY ADAUNISTRATJON. - ... UNDER and by virtue of the authority vested in me by - 'subsection (1) of Section 1 of the South-West Africa Affairs Act, 1022, I do hereby fix the First day of October, 1922, as the date • from which the port and settlement of Walvis Bay, which forms part of the Province of the Cape of 'Good. Hope, shall be administered_as_lf it were part ^of the mandated territory of South-West Africa and as if inhabitants ot trie said lx>rt~ and settlcmcmVyvcre inhabitants of the said territory.- . I do further, under and by virtue of the authority aforesaid, as from the said First day of October, 1922, delegate to the Ad- tmnistrator of ihe mandated territory of South-West Africa the powers conferred upon the Governor-General by Section 2 of ' Act No. 35 of 1884 of the Cape of Good Hope, to repeal, alter, amend or modify any law in force in the port and settlement of Walvis Bay and to mate new laws applicable-io-that-port~and settlement to the intent that" the "said Administrator may, bv the repeal, alteration, amendment or modification of laws and the

rnaTcing..of new laws-bring the laws, in force in'the port and •' s'efiilement of Walvis Bay into conformity wifh the laws of the mandated territory of South-West Africa. ' GOD SAVE THE KING Given under my Hand and the Great Seal of the Union of South Africa at Durban this llth day of September, One Thcausand Nine Hundred and Twenty-Two. '_ w- ••'" > •' . ,' . ' ARTHUR FREDERICK,- V : "... * Governor-General. : By Command of His Royal Highness the i . Governor-Gcneral-in-Council. - ~ .•'.' -. . .° ' J. C. SMUTS.. ; v -: ''•—: No. 30 of 1922.] - (G., 2nd Odober, 1922. WALVIS BAY ADMINISTRATION. WHEREAS His' Royal Highness the Governor-General of the Union of South Africa has under and by virtue of Mic authority vested in him by sub-scdion (1) of section one of the South- West Africa Affairs Act, 1922, been pleased lo fix by Proclamation dated ...at ... piyba.n_.on_Jhe_ ljHh_day qf_Scp'lcnjbcr» J922, and published in the Gazette "of tlic Union dated 15th Scpicniber, 1922, IIicJHrst day_of October, J9?2. as the date from which the IJOfl^nd^lHffcincnO^ part of the Province oT^ of the Magistrates' Courts A.ct, fgrL of ihc Union P.irli.uiicr-.t as Applied lo this Territory by section nine- of the Ath r of Ji:siicc Proclamation, l 'IOi Snd I'rochmation No. ^o of 1920, daietl tlit 2nd day of Scplc:iibcr, 1930. shad be a::t! ts hereby .inic!iil<:d accordingly.

said port and settlement. ,. (2T F?cTrn"and after the said First day of October, 1922 sx enactment i=sued by the Administratoj^bâiLory o, Soulh- ; W^srrAlrl^niTvTIrg~ l^"force of law w:thm tne said Ternto.y shsll be of force and. effect within the saidjjort_aaj^.eLt]e.:nent unresIlhrb^âlioTT thereof within the said port and settlement is expressly excluded. 3. Every suit nnd proceeding civil or crimiii.il pi-iulin^ in the Court pf . thc..Magistratc. oI.AX'alvis .I?ay or in .lIl£_£-aPc. of Good Hope Provincial Div[sion_jii_lha-3iJprcin_c_Ca.url.Qf .jôuih Africa al th"c"cla'lc~6f lh~e faking effect of !his Proclamation shall be regarded as haviii^J^y.,Yirlu^ftLt)iisJlrijdî]alIortJiuciU'_cjnovcd into the- . _£.Qiirt of the

son having lawful authority to grant such renewal or issue lo grant a temporary licence, permit, or authority for such period as may elapse before such renewal or issue is possible subject to such payment as the Administrator may direct 5. All taxes, duties, dues aiid_j^yc.iu»ejaf_ejiierv_kjn(Land naturnaure paya\\rpayaTflF\\rnTTee ssnin d porl_sc.porT7Jld_sciUe.mcnm t anand duuee u> oor claima6le"Dytlic~Dnion Government or the Provincial Administra- tion of the Province of the Cape of Good Hope at the dale of the taking, effect of this Proclamation shall become, be and continue claimable by and 'payable to the Administration of Smith- West Africa and shall be collected and accounted for in the like manner as the taxes, "dues and revenue according to the luitnrc and kind thereof respectively are or ought to be collected in the Territory of South-West Africa. 6. This Proclamation may be cited for all purposes as Ihe Walvis Bay Administration Proclamation, 1922, and shall com- mence and take effect on the First day of October, 1Q22. GOD SAVE THE KING. -' Given under my Hand and' Seal at Pretoria this 2nd il^jf of October, 1922'. GIJS. R. HOFMEYR, Administrator.