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Home , Penguin Islands, Walvis Bay

~ Elizabeth S. Landis f 19 June 1981 - IF IT QUACKS LIKE A DUCK • • • ,

NAMIBIA AND ESTOPPEL

Introduction

An old American folk-saying holds that "If it looks like duck, ·· svi~ like a duck, valks like a duck and quacks like a duck, it is a duck." Lawyers, of course, never state their truths so crudely -- certainly not if they are speaking a modern language vhich their clients understand, instead of Latin. But they do have a concept vhich translates the gist of that popular saying into lav. It is called estoppel. Most systems of Western lav recognize the general concept of estoppel although they differ as to vhen and under vhat conditions it may be involved. In general, hovever, if X leads or knowingly allovs members of the public to make certain reasonable but erroneous assumptions about matters under X's control, and if such persons act on the basis of those assumptions, !may be estopped to deny the truth of those assumptions in an action for damages or other remedy by a person misled by X. The principle of estoppel also exists in international law. It is a principle vhich surely applies to Walvis Bay insofar as it can be demonstrated that the enclave vas treated by as an integral part of for more than half a century and that the development of the Territory vas shaped by the apparently indissoluble legal, political, and administrative joinder of Walvis Bay to Namibia. Estoppel forms part of a complex of arguments demonstrating that the tiny enclave is indisputably an integral part of Namibia as a matter of conventional lav, as vell as of history, economics, culture, political necessity, and emerging international lav as to self-determination. This paper does not attempt to go into the legal arguments relating to estoppel at international lav. Rather, its purpose is to marshall the most significant facts on vhich an argument of. .estoppel can be based. Most of these facts are found in the legislation applied to the Territory by South Africa and in decisions of South African or Namibian courts. Some are matters within 2

the knowledge or Namibians, or which a court might reasonably take judicial:. notice.

By and ~arge, however, these racts are not well known outside Namibia. I hope that this catalogue will be userul to the scholars here assembled and to others who may subsequently ponder the question of Walvis Bay. The paper begins with a capsule history of Walvis Bay, emphasizing the

extent to which it was integrated, constitution~ and legislatively, into Namibia prior to its annexation by South Africa on 1 September 1977. Succeeding sections discuss the extent to which the enclave was integrated into the Territory in specific respects, such as the rranchise, jurisdiction of courts, etc. The concluding section considers the extent to which Walvis Bay has remained indissolubly bound to Namibia, legally and otherwise, in the nearly rour years since its annexation by South Africa.

History of Walvis Bay pre-mandate

Walvis (i.e. , "-rish'') Bay was known very early to Europeans as a provisioning station ror whalers heading for the Antarctic. Although the British Navy had long patrolled the South Atlantic and had 2 taken possession of the in the 186o•s to protect national ·- . whaling and sealing interests, it was only after l.ong urging by that in 1878 the captain or Her Majesty's ship, the tnCiustr;y, took possession of Walvis port and some 434 square miles (1,124 square kilometers) around it3 for 4 the British Crown. Six years ~ater, after trying in vain to persuade the British government to claim all of Namibia, the largely self-governing British , acting under Letters Patent issued by Queen Victoria,5 annexed Walvis Bay. 6 11' :~ .- -~-·-·-··-:-j~'-Zq,.,b ' N G I 0 r . __ ...... _ ·-·-·-· . l

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Shortly thereaf'ter the European colonial powers parcelled out the - - remaining unclaimed portions of Africa, with then (minus Walvis BBiY) becoming a German protectorate. The 1egislation which annexed Walvis Bay to the Cape made existing Cape law applicable to the enclave. It provided, however, that in the future the (British) Governor of the Cape would rule it by proclamation, while 1aws enacted by the Cape Legislature would apply only if specifical1y made applicable thereto by a provision in tne legislation or by proclamation of the Governor. The Governor was empowered to administer the enclave as part of the Cape.7 Thus Walvis BBiY became in effect an overseas -- or, at least, a 1, 200 kilometers distant -- colony of a colony. Walvis Bay passed from the Cape to South Africa upon formation of the Union. 8 For the next five years the enclave was treated for legislative and administrative purposes as part of the Union.9 As soon as the South African military occupation of South West Africa in was completed, however, the integration of Walvis Bay into Namibia began. On 20 September 1915 the South African Military-Governor of South West Africa provided that "for the better administration of the said Territory and Port of Walvis Bay on account of its contiguity to the /South West Africa7 Protectorate ••• , the provisions of al1 Proclamations and Martial Law Regulations as have been issued or may hereafter be issued in the Protectorate shall be 10 tleemed to apply equal1y to the Territory and Port of Walvis Bay. "

Integration of Walvis Bay 1922-1977

Legislative integration The legislative integration of Walvis Bay into South West Africa, which began while the latter was still enemy territory under military occupation, vas :- ·.~- substantially completed even before a constitution vas granted to the Territory. 4

In 1922, less than two years after South Africa accepted ~he mandate~ the enactme~t of three interrelated laws produced the legislative unity between

Walvis B~ and South West Africa which had been foreshadowed by the martial law proclamation of 1915. The first of these laws, the South West Africa Affairs Act,ll empowered the (British) Governor-General of South Africa to set a date after which "the port and settlement of Walvis B~ which forms part of the Cape of' Good Hope shall be administered as if it ·was part of the mandated territory and as if inhabitants of the said port and settlement were inhabitants of the mandated territory " It also empowered the Governor-General to delegate his powers to make laws in Walvis B~ to the (South African appointed) Administrator of South West Africa. The Act further provided that after the date set by the Governor-General no act of the Union Parliament should apply to Walvis B~ unless "it is specifically expressed so as to apply or unless it is declared to apply by proclamation of the Governor-General in the Gazette." Within two months the Governor-General, acting under that law, issued a proclamation12 setting l October 1922 as the date for such changes to become effective.

And on the following d~ the territorial Administrator issued a proclamation13 to implement the Union legislation by, inter alia, {i) repealing the (South African/Cape) laws then in effect in Walvis Bay and substituting 14 South West African laws for them and {ii) making all territorial laws issued by the Administrator automatically applicable to Walvis B~ unless such application was specifically excluded. Thus, by the end of 1922, there was complete legislative integration of Walvis B~ into South West Africa, except in one limited respect: At that time, as throughout the entire mandate period, South African legislation applied to South West Africa only if it was specifically made applicable thereto. But even if an Act of (the South African) Parliament was made applicable to South West Africa, it did not as a consequence apply to Walvis Bay unless it was stated to apply to the enclave as well, since section 1(4) of the 1922 Act provided that B2. Acts of Parliament should-apply to Walvis B~ unless specifically 5 made applicable thereto. Section 1(4)~ therefore, compelled drafters of· _ parliamentary legislation to include separate provisions to apply the relevant laws to the enclave as well as to the Territory or else to use a different formulation~ such as applying a law to South West Africa, "including" Walvis Bay. Finally, in 1944~ a short South African enactment15 removed this anomalY by substituting a new section 1(4) in the 1922 Act. The new subsection read: "(4) /my Act ot Parliament or proclamation by the Governor­ General ••• 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 the Act or proclamation otherwise provides." This made automatic the application to Walvis Bay or any Union legislation which applied to the mandate. Consequently, Walvis Bay was thereafter clearly subject to all laws applying to South West Africa and to no others. (It should be noted, however~ that the habit acquired during the years when Union legislation had to be made expressly applicable to Walvis Bay did not die easily. For a decade or more after the amendment of section 1( 4), some Acts or Parliament which were made applicable to South West Africa -- particularly, it appears, consolidation acts which reenacted verbatim large portions or existing laws -- continue4 to include special provisions applying them to Walvis Bay. The effect of the 1922 laws on the relationship between the enclave and the mandated territory appears to have occasioned very limited judicial concern. The only case cited by most authorities is Rex v. orren.16 In that case Offen was convicted of contravention of the South African Customs Tariff and Excise Amendment Act of 1925,17 committed in Walvis Bay. His defense was based on the alleged failure of the authorities to promulgate the law properly there. The Chief Judge affirmed the conviction, holding that the Act had been properlY promulgated by publication in the official Gazette of the Union. In reaching that conclusion he examined the relationship between Walvis Bay and South West Africa. a.s established by section 1 of the 1922 South West Africa. Affairs Act. ''We do not find," he wrote, -ntha.t Walvis Bay is made a. part of the 6

. mandated territory. The section says: 1 (l) ••• the port and settlement of_ Walvis Bay, which forms part of' the Province of' Good Hope, shall be administered

.!!. if' it ~part of' the mandated territory and.!!. if'~ inhabitants of' the said

1 port and settlement ~ inhabitants of' the mandated territory. ••• /Section 17 means that laws passed for the mandated territory shall be applicable to Walvis-Bay, but not that it is to be .!. part of' such territory •••• nlB {Emphasis added.) He then vent on to construe section 38(1) of' the Customs Act, which provided that for customs and excise purposes South West Africa vas to be regarded as part of the Union; and subsection (3), which provided that the Act should apply to Walvis Bay, 'twhich for the purpose of this section shall be deemed to be a part of the mandated territory." Wessels, C. J., concluded that, "It is perfectly clear from that sub-section Lvis., (3)/ that it makes the Act applicable to Walvis Bay on promulgation in the Union Gazette, not as part of' the Union territory only but as part of the Union territory which is deemed to be part of the mandated territory •••• nl9 (Emphasis added). 20 Offen vas cited in R. !..· Ak.kerma.nn (discussed also at PJ..O below). In the latter case Classen, J., reasoned that the territorial Administrator's proclamation of 2 October 1922 "vas intended to state and did in fact state that for all practical ••. purposes whether civil or criminal, the port and settlement of Walvis Bay shall, as from a certain date, be regarded, unless specifically excluded, as if' it were an integral part of the Territory of' • u2l S outh West Af'r1ca .••• 22 In 1925 the Union Parliament enacted a constitution for South West Af'rica, granting the white population considerable legislative and executive power. Mindful of section 1(4) of' the 1922 South West Africa Affairs Act, section 43{a} of the Constitution carefully stated that "the port and settlement of' Walvis Bay shall be deemed to form a part of' the territory for the purposes of' this Act •••• " 7

The first territorial constitution was repl.a.ced in 1.968 by another/~ 24 which, a.s amended the following year, was designed to impl.ement the "Odenda.al Pl.an'F~Y transforming Namibia. into a bantusta.nized :fifth province of South Africa.. The 1.968 constitution reproduced verbatim section 43(a) o:f its predecessor a.s new section 36 despite the fact that the 1.944 amendment to section 1.(4) of the 1.922 Act had rendered the new section superfl.uous.

Judicial integration · The integration of Walvis Bay into the judicial system of South West Africa occurred simul.ta.neousl.y with its l.egal and administrative integration into the Territory. Section 1.(5) of the 1.922 South West Africa Affairs Act provided that after the date to be set by the Governor-General "the said port and settl.ement shall. for all. judicial purposes be regarded as forming part of the mandated territory and not as forming part of the province of the ." Section 2 of the territorial Administrator's Procl.a.mation of 1.922 expanded on this broad generality:

Every suit and proceeding civil. or crimin~ pending in the Court of the Magistrate of Walvis Bay or in the Cape of Good Hope Provincial Division of the Supreme Court of South Africa.. • • shall. be regarded a.s having by virtue of this Procl.ama.tion been removed into the Court of the Magistrate of the District of Swa.kopmund or the High Court of South West Africa as the case may be •••• This was followed by provisions specifYing how the transfers shoul.d be effected. A few weeks l.ater the Administrator provided that Wa.l. vis Bay "in the 27 /magisterial7 district of " shoul.d be the site of a. periodical court. Within a decade the Administrator created a. special. justice of the peace district, incl.uding portions of the Swakopmund and Luderitz magisterial districts, • T.Tal • B • t 28 ~th " v~s ay as ~ts sea • ·ff• 8

The High Court of South West Africa sitting in Walvis Bay was recognized as a Court of Admiralty. During the Second World War it was also recognized as a prize court while hostilities continued.29 Fina.lly, in 1958, the Territory added a new magisterial district: Walvis Bay. 30 The small, sparsely populated enclave, which had been merged, :for judicial purposes, into the existing district of Swakopmund, had grown into a community of sufficient population and importance to warrant becoming a separate magisterial district.31 It would.henceforth be described as "the magisterial district of Walvis Bay in the Territory of South West A:frica"32 until South Africa annexed it in 1977.

Fiscal integration The basic provision for the :fiscal integration of Walvis Bay into Namibia was made in the Administrator's first proclamation relating to Walvis Ba.y. 33 Section 5 of that proclamation read: All taxes , duties, dues and revenue of every kind and nature payable within the said port and settlement and due to or claimable by the Union Government or the Provincial Administration of the Province of the Cape of Good Hope at the date of the taking effect of this Proclamation shall become, be and continue claimable by and p8Yable to the Administration of South-West Africa and shall be collected and accounted :for in the like manner as the taxes , dues and revenue according to the nature and kind thereof respectively are or ought to be collected in the Territory of South-West Africa. In addition, the preceding section provided :for the transfer of the licensing power from Cape or Union officials to South West African authorities a provision which, at that time, was aimed at least as much at the revenues involved as at control of the various activities or things subject to license. Since all revenue laws -- like all other laws -- enacted in the Territory af'ter 1922 applied in Walvis Bay, the enclave was tied from that moment into the developing fiscal structure of the Territory. 9

In a technical article on the "Tax Implications £or the 1977 annexation? 34 for Walvis B8\Y' Residents", G. J. Hanerkom, a Chartered Accountant, pointed out that prior to annexation all territorial income tax laws applied to Walvis B8\Y'. These included a South West Africa ordinance, 35 which purportedly applied to all resident individuals and to certain companies in the Territory, and the South African income tax law, 36 purportedly applying to all other Bamibian companies, 37 which assessed lower rates against them than against South African companies. (So seriously did the ~uthorities take the differences between South African and Namibian income taxes that on 13 February 1959 the South African Finance Minister and the South West African Administrator concluded an "agreement for the avoidance of double taxation and the prevention of fiscal evasion in respect of taxes on income •••• "38 Article II, section 1{a) of that agreement defined "Union" to mean "South Africa, excluding the Port and Settlement of Walvis Bay ••• "; and section l(b} defined "South West Africa" to include the "Port and Settlement ••..~"). Just as the residents of Walvis Bay were subject to the same taxes as all other Namibians, so also they were exempt from taxes imposed by South Africa on its own residents, which were not applicable to inhabitants of the Territory. Notable examples of taxes they escaped are the South African gi:rt tax and death duties.39

The franchise During the years when Walvis Bay was administered by the Cape, the minuscule white population of the enclave was not represented in the Cape legislature. By contrast, it appears that under Union administration white residents did participate in South African elections, voting as part of the 40 Cape Town Harbour electoral district of the Cape. When, however, a constitution was granted to South West Africa, under which its white residents could elect a territorial Legislative Assembly, Walvis B8\Y' vas made part of the Swakopmund electoral district. The district was defined as including.. the entire magisterial district of Swakopmund, together with parts o...~ a dj Ol.Ill.Ilg• • . mag1.s . t erl.a..J.._, di s t r1.c . t s. 41 (See a ttac h e d map. ) 10

In 1949 the number of elected members of the Legislative Assembly was 42 increased from 12 to 18, and the Territory was given six seats in the So~th 43 African House of Assembly. ~e new delimitation occasioned by these changes again included Walvis BS\Y' in the Swakopmund Legislative Assembly electoral district; the population of the two towns together was still so small that some 44 adjoining rural areas were added to form the district. The growth that led to the establishment of a separate magisterial district of Walvis BS\Y' also led. ultimately to the creation of a separate Walvis Bay electoral division. Indeed, in the electoral delimitation of 1974, just three years before South A:frica annexed the enclave, Walvis BS\1 had outgrown a single electoral division. The white electorate resident in the enclave was split between a Walvis BS\Y' electoral division, covering the southern part of the "port and settlement," and the Swakopmund division, to which a few residents of the . 45 northern part were assigned.

Immigration Between 1922 and 1977 Namibian immigration laws applied in Walvis B8\Y', and South African did not. 46 In R. v. Akkermann the accused was a Coloured, who was authorized to travel throughout the . When he came to Walvis Bay, he was charged with wrongfully entering South West Africa, since territorial law prohibited immigration by non-whites except with official permission. Akkermann was acquitted in the magistrate's court, since the magistrate doubted that Walvis Bay formed part of South West Africa for the purposes of the immigration law. The High Court of South West Africa reversed, holding that, in construing the immigration law, "the word 'territory' must be interpreted to include the 47 port and settlement of Walvis Bay. n Hence Akkermann had contravened the l.aw by entering Walvis Bay without a permit. 11 ~ I) I ~lectoral Divisions~ - -Kiesafdelinge. Centra\ 00 llWindhoek. Seotraal \___-_. T ~/\ · Kuring Kuru u ----- . Hondoto 0 Ondo"9ua, 1 ( O.r\CO . 3' .

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Documentary evidence Official documents, including government publications, maps, etc. , may provide some evidence as to the integration of Walvis Bay into Namibia. While no thorough research has been undertaken, a casual sampling of government publications and related materials in the United Nations library shows that, prior to its annexation by South Africa in 1977, Walvis Bay was consistently treated as part of Namibia for statistical and analytical purposes: Data concerning Walvis Bay population, area, rainfall, economic activity, etc. -­ all were included in territorial statistics and analyses. I have been unable to find any information relating to Walvis Bay which has been included in South African statistics rather than Namibian statistics, except to the extent that South Africa and Namibian data, taken as a whole, have 48 been merged to give one composite figure which is attributed to South Africa. It should be noted that certain documents point out that the·south African Railways and Harbours Administration operates the harbour of Walvis Bay.49 A separate and secondary, but related, issue is how the legal status of Walvis Bay is described or defined in official or quasi-official documents and maps. Here there is considerable inconsistency, both among the various documents and even within the same document. Most official maps of the Territory follow official German maps (printed before 1915), which show a clear national boundary line at the border of the Walvis enclave. By contrast, many unofficial tourist maps {published by oil companies or related organizations) did not, until Walvis Bay became an international issue, show such a national boundary -- for the good reason (discussed below at P. 15 ) that such a boundary was physically non-existent. {It is significant to note that although the 1955 map of (surveyed land in) South West Africa published by the Surveyor-General did mark the Walvis/South West Africa "national" boundary, it did not indicate in any way that South Africa claimed title to the Penguin Islands. By 1966, however, when the controversy with 12

the UN ha.d heated up~ the Surveyor-General's revised map underlined the names of a.ll the Penguin Islands~ and the legend indicated that South African claimed title to them) • Physical descriptions of Namibia. in most of the official territorial publications and documents of various dates which I have examined state or imply50 that Wa.l vis BS\Y" is part of South Africa.. As international attention began to focus on Namibia.~ however~ the wording of such publications became increasingly contenti6us: Thus the 1967 South West Africa. Survey stated: The total area /of Namibia./ is 824~269 square kilometres (3l8~26l sq. miles) including the area. of Walvis BS\Y" (l~l24 sq. kilometres or 434 sq. miles) which, although part of the Republic of South Africa, is a.dminist5red, for convenience~ as part of South West Africa. .••• By contrast, the footnote to the figure for "total area." of Namibia in the 1974 South West Africa Survey read: 2 Including the area. of Walvis Ba.y (l~l24 k:m ) which is part of the Republic of South Africa. a.s a result of the area's proclamation a.s a. British Crown Territory in 1878~ a.nd its subsequent annexation to the Cape of Good Hope in 1884 • Certain islands along the coast of South West Af5~ca. are also part of the Republic of South Africa. In discussing Namibia's harbours the same Survey made South Africa's position very clear: Wa.l vis BS\Y" has become the Territory's gateway to the outside world. However~ Walvis BS\Y" and its surrounding area. is South Africa. territory~ a.nd was never part of . or of the area. under mandate. This means that the Territory's only effective outlet~ by rail and ship are through South African territory. 3 If official territorial publications record South Africa's claim to

Walvis B~ ~ South African official publications should, logically~ include the enclave as part of the Republic. On the basis of a. casual spot check~ however,

I discovered that they are likely to ignore Walvis B~ or mention it only pro forma: When official South African publications contain a. map which shows the countries surrouncli.ng the Republic, those maps~ like official maps of the 13

Territory, usually show a national boundary between Namibia and Walvis Bay. Frequently, however, there is no suqh map. (And no map I have seen shows the Penguin Islands as part of South Africa -- indeed, they usually are not shown at all.) More significant than the small-scale maps in such publications, however, are the physical description of the Republic {Union). These seldom, if ever, include Walvis Bay -- and certainly not the Penguin Islands. Thus, typically· (according to my sampling) the Economic, Financial and Statistical Year-Book for the Republic of South Africa 1963 describes the area of the Republic as follows: The Republic consists of four provinces of which the Cape Province covers an area of 278,465 square miles, the Transvaal. 110,540 square miles, Orange Free State 49,866 square miles and Natal 33,578 square miles. South West Africa, which is administered by the Republic of South !frica, has an area of 317,725 square miles. 5 Chapter 48 on "Ports and Harbours" states that: The ports of the Republic of South Africa and South West Africa are owned by the Government /of South Africa7 and administered by the South African Railways - an arrangement which facilitates the correlation of rail traffic from and to $~e ports with the loading and discharge of ships. It goes on to list the principal harbours: "Table Bay (Cape Town), Algoa Bay (Port Elizabeth), Buffalo Harbour (East London), and in the Republic, and Walvis Bay in South West Africa •••• "56 The special chapter on South West Africa does not mention Wal. vis Bay in its description of the "area" of the Territory: "It stretches for nearly 1,000 miles from the in the South to the Kunene River in the north •.• " 57 The only reference to the special status of Walvis Bay occurs in the section on "Administration": ". • • Walvis Bay (which since 1922 has been administered 58 as part of South West Africa), ••• and Mariental are municipalities ••. n 14

The 1977 Official Yearbook of the Republic of South Africa, printed in the year that the Republic annexed Walvis Be¥, contains one map in the text 59 and endpaper maps that show a national boundary between the enclave and the Territory. However, Walvis Bay is not mentioned in the physical description of South Africa -­ 60 nor are the Penguin Islands, although the Prince Edward and Marion Islands are. The Yearbook sets out the length of the South African coastline, measuring 61 it from the Orange River to Cape Point and from Cape Point to Ponta do Oura. That table omits the Walvis Bay coastline although it specifically includes the ~independent" Republic of the Transkei. The "Historical Land Marks" chapter in the 1977 Yearbook, like that in the 1963 Yearbook, notes that Walvis Bay was proclaimed British territory in 62 1878, but has no further reference at all to the enclave at any subsequent date. The Yearbook chapter on South West Africa is rewritten, however, to mention Walvis Be¥ and "certain islands along the coast": 2 The total area of SWA is 824 269 km ( 318 261 square miles) ••• This area includes that of Walvis Be¥ (1 124 km 2 ) which is actually part of South Africa. It was proclaimed a British Crown territory in 1878 and annexed to the Cape of Good Hope in 1884. Certain ~~lands along the coast are also part of the RSA •. The Atlas of the ., published in 1959 by the University of Cape Town Department of Geography in conjunction with the South African Council for Educational, Sociological, and Humanistic Research (C.E.S.H.R.), does not show Walvis Bay (or the Penguin Islands) in a single map or table. In particular, there is no reference to it in the information 64 on .~-J.s~· h processJ.ng . J.n . the unJ.on . •

Physical evidence All Namibians and other residents of the Territory agree that, prior to the annexation of Walvis Bay in 1977, it was considered an integral part of Namibia, not temporarily or under South African license, but permanently, naturally and rightfully. Walvis Be¥ was assumed t~- be as much a part of the present and future Territory as Swakopmund or Liideritz or itself. 15

By the time the South African Prime Minister questioned the status ·or Walvis Bay in the late 70's, 65 most inhabitants of the Territory had forgotten if they had ever known -- that the i'port and settlement" had been separated politically from its natural hinterland during the German colonial period. Indeed, the evidence of that nineteenth century separation started to disappear with the advent of the South African occupation of South West Africa during the First World War.

The swift legal·integ~ation of Walvis Bay into the Territory has been discussed above. But psychological integration based on appearances and attitudes occurred almost as quickly and totally. Soon enclave and Territory displayed all the physical indicia which people associate with a single national polity. Thus there was, on the one hand, a complete absence of any visible evidence that Walvis Bay and Namibia were separate political entities -- leading to the reasonable conclusion that they constituted, instead, a single one. The boundary line shown on various maps was not marked in any way on the sandy wastes through which that boundary ran. Nor was it marked in any way on the roads -- there are only two, even today -- to (from) Walvis. There were no sign posts or other markers, no fences, no guards or guardhouses, no changes in traffic markings, and none of the other, subtler indications of a change of jurisdiction. Similarly, there were no immigration or customs stations or formalities on entering Walvis from the Territory or returning, either by road or by rail. By contrast, immigration controls did exist for persons travelling 66 between Walvis and South Africa. On the other hand, there was a wealth of positive evidence that Walvis Bay and Namibia did constitute a single political entity. Thus, it vas immediately apparent that the uniforms and insignia worn by government officials in Walvis were the same as those worn elsewhere in the Territory. Also that South West African, not South African, stamps were used for 66 posting ~l from the enclave. Cars of Walvis residents carried territorial license plates, with the code SV identit1ing the district.67 Local motorists obtained South West African drivers' permits, valid in South Africa because they were issued by territorial authorities.

' 16

On examination it became apparent that Walvis B~ schools were part of 68 the South West African school system{s), subject to territorial law. Similarly,

Walvis B~ hospitals were included in the district hospital system established 6 in the Territory in 1922. 9 At the economic level, canned fish, the enclave's primary product, was sold as a "product of South West Africa" until the status of Walvis Bay became an international political issue. These are merely representative examples of the overwhelming mass of physical evidence which affected the understanding and expectation of Namibians as to the status of Walvis B~ and which led them to assume that it was an integral and permanent part of the Territory to which it vas also bound by historic~, economic, and cultural ties •

Walvis B~ since Annexation

The first South African challenge to the long-accepted status of Walvis

B~ as an integral part of Namibia occurred as a reaction to the increasing pressure for Namibiaij independence in the 70's. On 23 April 1976 then Prime Minister B. J. Vorster told the South African Parliament: "The idea is milling around very persistently in my mind that, since we transferred the administration of Walvis ~ to South West Africa in 1922, we should give very serious consideration in the recess to whether ve 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 2 who adopt the standpoint that Walvis Bay belongs to South West Africa. I do not want there to be any misunderstanding whatsoever about this. Walvis B~ belongs to South Africa ..~At this moment I am s~ing no more than that this is simply an idea I have. However, it is an idea to whic? I shall give very serious thought during the recess. 0 (Emphasis added.) .. 17

"Walvis B~ belongs to South A:f'rica and there must be no doubt about -it whatsoever," he reiterated a year later,71 suggesting by his statement that, indeed, doubt did exist. {He added that South Africa also claimed the Penguin Islands.) Some two months later the South African State President issued a proclamation72 providing that, as of 1 September 1977, Walvis B~ would no longer be part of South West Africa but would be part of the Republic. The proclamation stated. that it was "expedient and desirable again to administer and legislate for the said port and settlement as part of the Province of the Cape of Good Hope ••• :'73 Section 2(1) spelled out the basic change:

Walvis B~ shall cease to be administered as if it were part of the territory and as if inhabitants thereof were inhabitants of the Territory and shall again be administered as part of the province. Provision was made for switching white Walvis Bay voters from the Omaruru constituency to the Namakwaland (Namaqual.and) electoral district for purposes of South A:f'rican parliamentary elections.74 Existing laws were left in effect in

Walvis B~ until repealed by the Administrator of the Cape Province, who vas empowered to apply provincial law to the enclave.75 Subsequently the State President established the office of "Director" of

Walvis B~. The Director was to have such powers of administration as were delegated to him by the Administrator of the Cape.16 Despite the Prime Minister's year and a half of contemplating the future

of Walvis B~ before annexing it, South African authorities seemed singularly unprepared for the return of a portion of what they claimed to be South African territory: Replacement of existing territorial legislation, although spread over the next several years, proved to be more difficult than contemplated. There were, of course, practical problems, such as having to shift gears in the midst of activities -- to change over from one tax law to another in the middle of a tax year, for example. 77 But in addition, many Walvis B~ inhabitants had become -­ if they had not alw~s been -- closer in attitude and ideas to their territorial neighbours than to the South A:f'rica.te who now legislated for them. Thus, in 1981 Walvis residents were still resisting the rigorous application of South A:f'rican liquor laws to the enclave; amendments were proposed to exempt licensed premises ~8 in Walvis Bay from racially discriminatory provisions app~ied in South Atriea.78 Simi~arly, some Walvis Bay ~an~ords , hit by a ~arge-scale exodus o~ whites , ignored South Africa's "group area" provisions, which, inter alia, prohibit ~etting vacant "white property" to Co~oureds. Recently one o~ those ~an~ords, the U. P. candidate in the ~974 par~iamenta.ry e~ection, was jailed ~or contravening the ~aw. Both local and international press had a ~ield day over the case -- with the London Da.il.y Telegraph trumpeting "Walvis Bay, where the law is made to seem a bewildering ass. n 79 It seems that the culprit was jailed not in Walvis Bay, nor in the Cape Province, but across the "border" in Swa.k.opmund -­ 80 where the act ~or which he was convicted is no ~onger a crime. The imprisonment o~ Mr. Vaughn Webster in Swa.k.opmund wa.s the result o~ a proclamation, issued since the annexation o~ Walvis Bay, that o~~enders sentenced to imprisonment in Walvis Bay should serve their sentences in Namibia. 81 I~ imprisonment o~ "South A~rica.n" convicts in the jail o~ a "~oreign" country (i.e., Namibia} seems imp~ausib~e internation~, it at least has some practical advantages for prisoners who might otherwise be sent hundreds o~ miles away to the Cape. Conversely, the ~ocation o~ a ~ew thousand white Walvis

Bay voters to a large Cape constituency is ~eg~ appropriate if the enclave is deemed part of the Republic rather than o~ the Territory -- but it is ~ikely to be a practical disaster for Walvis Bay, whose residents see it as a special case deserving representation by some one .knowledgeable about and sympathetic to

~ocal problems.

The history o~ the franchise ~or Walvis Bay since annexation can only be described as farcical:

Although Walvis Bay was made a part o~ the Na.ma.kwaland ~ection district for par~iamenta.ry purposes on~ September ~977, no one from the Walvis constituency was ab~e to vote on 30 November ~977, the first South African election after annexation, because the Nama.kwaland voters' roll closed on 3~ August, one day 82 before ~he annexation took place. Consequently, the short-term result o~ annexation was that white residents of Walvis Bay were unrepresented in the South

African Par~iament, in the Cape Provincia:h_~egislature, and, it was assumed (although wrongly as it turned out}, also in the South West Africa Legislative Assembly. 83 19

In the electoral delimitation preceding South African elections in April of' this year Walvis Bay was transferred from the Na.ma.kwaland electoral district 84 to Green Point, a Cape Town constituency. Perhaps because this post-annexation electoral history left them feeling isolated and abandoned, the enclave's traditional NP supporters turned their backs on the dominant party and helped elect the PFP candidate. As far as territorial .elections were concerned, the immediate post-annexation situation was equally chaotic. During the initial period of' uncertainty it was assumed that the all-white territorial Legislative Assembly would be reduced from 18 to 17 by the elimination of' a Walvis Bay representative.85 However, a "temporary" decision was made to allow the continued representation of' Walvis 86 Bay. In the all-white "second-tier" election held late last fall, there were still 18 contested seats.87 Meanwhile, different rules were applied in the illegal Territory - wide election run by the South Africans in December 1978 for membership in a "constituent assembly" (now the "National Assembly'1. The Registration Proclamation disqualified all persons born in Walvis Bay unless they met the requirements relating to subsequent residence in Namibia (excluding Walvis Bay).88 Annexation also caused a change in the "franchise" for non-whites. Coloured, Rehoboth, and Nama. residents of' Walvis Bay were made part of' the Table Mountain (Taf'elberg) electoral division of' Cape Town for elections to the South African ·Coloured Persons Representative Council.89 This resulted in the anomalous situation that Mr. L. J. Barnes, Coloured deputy chairman of' the DTA and a resident of' Walvis Bay, could vote only in the Cape. 90 In the commercial field the local press reported that various trading and distribution agreements presented problems for the authorities after the change­ over to South African control. In particular they noted - after, it seems , an unpleasantly dry summer season -- that South African brewers refused to supply Walvis BaY on the grounds that they were thereby honoring their distribution agreement not to supply the South West African market. 9l While some of' the anomalies described above lDS\1 be attributed to the "shaking-down" process involved in the annexation of' Walvis Bay, others, discussed below, suggest that the root cause may be found in the 'difference between pro forma annexation and real union. 20

They raise the question whether annexation was merely a ploy designed to deceive international opinion while South Africa's real goal was to use the enclave to control the government o~ a future ostensibly independent Namibia and to compel it to accept South Africa's regional hegemony.

The South ~rican Foreign Minister appeared to con~ir.m this supposition when he spoke about Walvis Bay on South Mrican radio nearly three years after

annexation. He began by e~~ectively re~using to consider the fUture incorporation

o~ Walvis Bay in Namibia. Then, recognizing the uncertainty a~~ecting its inhabitants, he suggested a "special dispensation" or short-ter.m development

strategy ~or the enclave. He added, however, according to the newspaper report, that

It was important not to provide arti~icial stimuli, however, as these would create ~alse expectations in the local populace.

Also, Walvis Bay could hardly b9 integrated ~ctionally 2 in the economy o~ South Africa. The lack o~ "~unctional" integration was emphasized again when inhabitants o~ Walvis B~zy requested the South Mrican Broadcasting Corporation (SABC) to supply them with a cassette television service o~ its programme. Senior o~~icials turned them down, making it clear that Walvis Bay would have to be satis~ied with the proposed South West African Broadcasting Corporation television programmes to be inaugurated later in the year and relayed ~rom Swakopmund. 93

Perhaps the most signi~icant evidence, however, o~ the true nature and depth

o~ Walvis B~zy' s ties to the Territory, rather than the Republic, is ~ound in the ~act that the conscripts ~or the South West ~rica territorial army (SWADEF) are being trained in Walvis Bay. 94 This fact ~eads to one of two possible conclusions: Either (i) a conscious decision has been taken to train Namibian soldiers in a foreign country -- i~

Walvis Bay is accepted as a part of South Mrica -- despite the existence o~ imnumerable bases in Namibia (e.g., Grootfontein, Ondangua, Rundu, Mpache, etc.) where the training could be accomplished; or (ii) Namibian recruits are being trained in an area recognized in fact as being part o~ Namibia. l

Notes l. "Namibia" is used to refer to the Territory generally and also in references limited to the period following revocation of the mandate in 1966. "South West Africa" is used to refer to the Territory prior to revocation of the mandate. "South West Africa(n)" is also sometimes used to refer to the illegal administration which, occupied Namibia after the revocation of the mandate.

2. Cape of Good Hope Session Laws, Act No. l of 1873, Preambular paragraph.

3. The area of the "port and settlement" vas originally estimated to be 374 square miles. South Africa, Report of the Commission of Enquiry into South West Africa Affairs 1962-1963, R.P. No. 12/1964 (hereinafter "Odendaal" (named for the chairman of the Commission) ) , para 31. The area vas subsequently recalculated at the figure given in the text. :tJi.; Department of' Foreign Affairs of' the Republic of South Africa, South West Africa Survey 1967, at 7. The boundaries of' the port and settlement were set out in the proclamation annexing it as: 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 Rooibank, including the plateau, and thence to 10 miles inland from the mouth of' the Svakop River; on the north by the last 10 miles of the course of the Svakop River, and on the vest by the Atlantic Ocean •••• The southern boundary, which vas disputed f'or years , vas finally settled by international arbitration. See AWARD of' Don Joaquin Fernandez Prida, Arbitrator in the Matter of the Southern Boundary of' the Territory of Walf'isch Bay -- Madrid, May 23, 1911, Parliamentary Paper, "Africa, No. l (l9ll)," Cd. 5857, 104 British and Foreign State Papers (hereinafter "BSP") 50.

4. 12 March 1878, 69 BSP 1178

5. 14 December 1878, 70 BSP 495

6. , Proclamation of' the Governor of' the Cape of' Good Hope, 7 Aug. 1884, 75 BSP 407; Walfish Bay and St. John's River Territories Annexation Act, No. 35 of' 1884, 75 BSP 408. 2

7. Act No. 35 of 1884, sees. 1, 2

8. 31 ~ 1910

9. Walvis B~ Administration Proc. No. R. 202 of 1977 (30 Aug. 1917), 2nd preambula.r para., So. Af'. Gov't Gaz. No. 5731 (31 Aug. 1977)

10. Proc. No. 12 of·l915 (20 Sept. 1915)

11. Act No. 24 of 1922

12. Proc. No. 145 of 1922 (15 Sept. 1922)

13. Walvis B~ Administration Proc., No. 3 of 1922 (SWA)(2 Oct. 1922)

14. The Administration of Justice Proc., No. 21 of 1919 (24 Dec. 1919), sec. 1(1), provided that "the Roman Dutch Law as existing and applied in the Province of the Cape of Good Hope at the date of the coming into effect of this Proclamation shall, from and after the said date, be the Common La.w of the Protectorate •••• "

15. Act No. 28 of 1944, sec. 1

,_., 16. 1934 SWA 4, aff'g 1934 SWA 73

17. Act No. 36 of 1925

18. At 6-7

19. At 1

20. 1954 (1) S.A. 195 (S.W.A.)

21. At 196

22. South-West Africa Constitution Act, No. 42 of 1925 3

23. South West Africa Const,itution Act, No. 39 of 1968

24. By the South West Africa Affairs Act, No. 25 of 1969

25. "Odendaal Plan" or "Odendaal report" (used interchangeably) refers to "Odendaal," supra n.3, and particularly to the major recommendations found in paras. 214-236, 298-425, 445-455, and 1554-1555.

26. A Court of Resident Magistrate was created for the "territory of Walfish Bay" by section 2 of the Cape Governor's proclamation of 1884, supra, n.6.

27. Proc. No. 31 of 1922 (S.W.A.}(7 Nov. 1922}

28. G.N. 139 of 1929 (S.W.A.)(lO Oct. 1929}

29. Union Proc. No. 72 of 1940 (12 April 1940)

30. Proc. No. 43 of 1958 (S.W.A.)(21 July 1958), amending Proc. No. 15 of 1950

31. The population of Walvis Bay increased from 600 in 1946 to some 10,000 in 1960. See Wellington, South ~es~ Africa and Its Human Issues (Oxford 1967) at 120. Its population was stated to be 26,000 in 1977. Africa Confidential, 23 Sept. 1977.

32 • Proc • No. 4 3 of 19 58, supra. n. 30, pream.bular para.

33. Supra, n. 13.

34. Windhoek Advertiser, 9 Sept. 1977.

35. South West Africa Income Tax Ord~No. 5 of 1974

36. Income Tax ·Act, No. 58 of 1962, applied to Namibia in 1969.

37. However, major mining companies frequently negotiated a special tax ' schedule or other p~nts in lieu of taxes in their concession agreements. 4

38. Set out in Income Tax Agreement Ratification Ord. , No. 13 of 1959 (27 May 1959).

39. HanerkomJ ~·ill· supra, n. 33

40. "From Cape Town Harbour ••• to Sea Point ••• to Omaruru ••• then Namaqualand ••• and now to Green Point ••• , " Times (Walvis Bay) , 17 Oct. 1980. When the Cape Town Harbour constituency was abolished, Walvis Bay was transferred to the Sea Point electoral district of the Cape Province; but before the voters cast their ballots in this new district, the South West Africa Affairs Act of 1922 transferred Walvis Bay to the territorial administration, and Walvis Bay whites lost their South African franchise, gaining South West African electoral rights instead in 1925. lli,S.

41. Govt. Notice No. 41 of 1926 (S.W.A.)(l3 March 1926), Electoral Division No. 9 -- Swakopmund.

42. South West Africa Affairs Amendment Act, No. 23 of 1949, sec. 38

43. Id., sec. 27

44. Union Proc. No. 105 of 1950 (12 April 1950)

45. Republic Proc. No. 21 of 1947 (27 Dec. 1973), So. Af. Govt. Gaz. No. 4162 (8 Feb. 1974).

46. 1954(1) S.A. 195 (S.W.A.)

47. At 196

48. With enactment of the South West Africa Affairs Act, No. 25 of 1969, control of many territorial matters was transferr.~ci to Pretoria. Statistics for the Territory were no longer issued separately, but were merged into South Africa data.

49. $ee, e.g., State of South Africa, Economic, Financial and Statistical Year­ Book for the Republic of South Africa 1963 at 506. 5

50. Thus the area of South West Africa may be described, in the text or in a not~ as "including Walvis BS¥."

51. . At 7; see also p. 82.

52. At 3

53. At 53

54. At 30

55. At 286

56. Ibid.

57. At 500

58. At 502

59. At 2

60. At l. The index, which is obviously inadequate, does not include the Penguin Islands and .-has only two entries under Walvis Bay.

61. At 3

. 62. At 861

63. At 911

64. See p. 152

65. See infra, p. 16

66. The Star (Johannesburg), 3 Sept. 1977, reported that Walvis residents who had ··"sWA/Namibia" stamps would be given a month after the annexation to excl)ange them for South African stamps. 6

67. The SV motor vehicle registration were to be changed to CWB (Cape)- - registrations in 1978. The Star (Johannesburg), 6 Jan. 1978

68. The Territory, like the Republic, has separate school systems (as well as separate schools) for different races

69. See Hospitals and Charitable Institutions Proc., No. 5 of 1922 (SWA)(l March 1922), establishing the system; G.N. No. 27 of 1928 (SWA) (11 Feb. 1928), constituting Walvis Bay a district under the earlier proclamation

10. Statement made to Parliament on 23 April 1976, reproduced as S/12062

71. New York Times, 15 June 1977

72. Walvis Bay Administration Proc., No. R. 202 of 1977 (31 Aug. 1977), So. Af. Gov't Gaz. No. 5731 (31 Aug. 1977)

73. Id., 4th preambular para.

74. Id., sec. 5. See also Proc. No. 248 of 1977, "Increasing of the Polling Districts of the Electoral Division of Namakwaland in the Province of the Cape of Good Hope" (22 Sept. 1977), So. Af. Gov't Gaz. No. 5752 (30 Sept. 1977)

75. Proc. No. R. 202 of 1977, supra n. 72, sees. 2(2), (3), 3

76. Proc. No. 191 of 1979 (23 Aug. 1979), So. Af. Gov't G&z. No. 6633 (24 Aug. 1979)

77. Hanerkom, .mpra. n. 34; Namib Times, 11 Oct. 1977

78. Windhoek Advertiser, 3 Oct. 1980; N~!!lib Times, 2 Sept. 1977; id., 20 Jan. 1981

79. 19 Ma,y 1981

' 80. The Times (London) , 19 ~ 1981; Sunday Times , 17 Me¥ 1981 7

8L Windhoek Advertiser, 21 Sept. 1977

82. Namib Times, 7 Oct. 1977; Windhoek Advertiser, 4 Oct. 1977

Namib Times, 7 Oct. 1977, but see infra at p. 19

84. Seen. 40 supra.

Namib Times, 2 Sept. 1977

86. Windhoek Advertiser, 3 April 1978, reporting a statement made by the Prime Minister in the South African Parliament.

87. To the Point (South Africa), 21 Nov. 1980; Windhoek Advertiser, 17 Nov. 1980

88. Registration of Voters (Constituent Assembly) Proc., No. 37 of 1978 (SWA) {14 June 1978), sec. 3, SWA Off. Gaz. Ext. No. 3768 (16 June 1978)

89. Proc. No. 310 of 1977 (20 Oct. 1977), Sb.Af. Gov't Gaz. No. 5794 (4 Nov. 1977). See also Windhoek Advertiser, 10 Aug. 1978

90. Windhoek Advertiser, 7 Nov. 1977

9L Windhoek Advertiser, 17 March 1978

92. Rand Daily Mail, 22 April 1980. See also reported comments by Douglas Booth, Namib Times, 13 June 1979

93. Namib Times, 3 April 1981. See also Windhoek Advertiser, 16 March 1981

94. Copy of induction order in the possession of the author. See Windhoek Advertiser, 4 April 1981; id.,- 3 April 1981; id.,- 15 Jan. 1981