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~ Elizabeth S. Landis 19 June 1981 NAMIBIA and ESTOPPEL

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~ Elizabeth S. Landis 19 June 1981 NAMIBIA and ESTOPPEL ~ Elizabeth S. Landis f 19 June 1981 - IF IT QUACKS LIKE A DUCK • • • WALVIS BAY, 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 South Africa as an integral part of Namibia 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. , "Whale-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 Penguin Islands in the 186o•s to protect national ·- . whaling and sealing interests, it was only after l.ong urging by Cape Town 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 Cape Colony, acting under Letters Patent issued by Queen Victoria,5 annexed Walvis Bay. 6 11' :~ .- -~-·-·-··-:-j~'-Zq,.,b ' N G I 0 r . __ ......_ ·-·-·-· . l<o:l-;....._ es,· L =-·-·-·-·...--·-·-·-·-- Mudrlo -·-·~·-·- ...- .. -... ·-·-·-·-·-·-· \ ~- - -._,..__ 0+. v- Q~.. D On.,l.q,njLLC'\. ct, .1 .I -~ .l .I NAf1181A .I 0 o .. -tjcr J.- 0 Ot'• .1 J&.wa,rQ..n~c . .I .I .I I ;... .I "'; J r·----~ t'-< WINDHOEK~ ~Co!ubis . I ::.. .I <: .I "'; .I ,...... .... I I­ n I .,,I 0 Y/4/v;s i •. &<j • . n iou.rn&hrp I r., I 1 ;:...· ""' """'crrl' ' .._ <1.rea. I <: .I .I .I .I r l IV,{~ ; L_ , - c; .. 3 Shortly thereaf'ter the European colonial powers parcelled out the - - remaining unclaimed portions of Africa, with then South West Africa (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 World War I 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.
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