Chapter VIII. Decisions of National Tribunals

1. South Africa

   Military service extended to non-white inhabitants of South West Africa by Proclamation 198 of 1980 which amended the South Africa Defence Act 44 of 1957 — Mandate for South West Africa and South Africa — Relationship of international law and municipal law

   SOUTH WEST AFRICA, SUPREME COURT1

   BINGA V. THE ADMINISTRATOR-GENERAL FOR SOUTH WEST AFRICA AND OTHERS,

   JUDGEMENT OF 22 JUNE 19842

   (Berker JP; Mouton and Strydom JJ)

   SOUTH AFRICA, SUPREME COURT, APPELLATE DIVISION

   BINGA V. THE CABINET FOR SOUTH WEST AFRICA AND OTHERS, JUDGEMENT OF 24

   MARCH 19882

   (Rabie ACJ; Corbett, Van Heerden, Hefer and Grosskopf JJA)

   SUMMARY: The facts — In 1980 the State President of the Republic of South Africa, acting under Section 38 of the South West Africa Constitution Act 39 of 1968, issued two proclamations relating to the defence of the Republic of South Africa. By Proclamation 198 of 1980 the South African Defence Act 44 of 1957 was amended and provisions relating to eligibility for military service were extended to include the non-white inhabitants of South West Africa. By Proclamation R131 of 1980 the Administrator-General of South West Africa was made responsible for the registration and enrolment of persons eligible for military service in the South West Africa Territory Force. In October 1977 Mr. Binga received notice of Proclamation 198 and was ordered to report for military service for the South West Africa Territory Force/South African Defence Force at the Port of Walvis Bay.

   Mr. Binga made an application to the Court joining the Administrator-General for South West Africa, the South African Minister of Defence and the Exemption Board for the South West Africa Territory Force as defendants. He submitted:

   (i) That the legislative powers of the South African Parliament over the territory of South West Africa were qualified by, and subject to, the terms of the Mandate of South West Africa which had been formulated by the Council of the League of Nations in 1920, and which had been incorporated by statute into South African municipal law;

   (ii) That Proclamation 198 and Proclamation R131 were unlawful because they contravened Article 4 of the Mandate which prohibited use of the mandated territory and its indigenous population for military purposes and the applicant was not therefore liable for military service; and

   (iii) That by issuing the notice relating to military service at the Port of Walvis Bay, an area which was outside the mandated territory of South West Africa, the Administrator-General had exceeded the grant of authority conferred by Proclamation R131 and the notice was therefore unlawful and should be set aside.

   Mr. Binga also made an alternative submission that the South African Parliament did not have competence to legislate for South West Africa because the United Nations had unilaterally terminated the Mandate for South West Africa by General Assembly resolution 2145 (XXI) of 21 October 1966 and Security Council resolution 276 (1970) of 30 January 1970 and that, following the advisory opinion of the International Court of Justice in 1971,3 South Africa’s continued presence and administration of the area was both illegal and invalid.

   Held (unanimously): — The application was dismissed.

   Per Justice Mouton: (1) The testing of legislation enacted by the South African Parliament or of amendments made to existing legislation, by reference to the terms and provisions of the Mandate for South West Africa, went beyond the scope of the judicial function of the municipal courts in South Africa. Responsibility for the supervision and proper enforcement of the Mandate for South West Africa lay with the international political community acting under the aegis of the United Nations General Assembly. The advisory opinion of the International Court of Justice in 1971 supported this view. The Court would, therefore, be prohibited from examining the validity of Proclamation 198 and Proclamation R131, even though judicial scrutiny was not restricted by Section 59(2) of the Republic of South Africa Constitution Act 31 of 1961 (pp. 469-475).

   (2) Although the Supreme Court of South West Africa was no longer a division of the Supreme Court of South Africa, the final appeal from the South West African courts was to the Appellate Division of the Supreme Court of South Africa. The Court would, therefore, remain bound by previous decisions of the Appellate Division relating to the Mandate for South West Africa (p. 474).

   (3) The Advisory Opinion of the International Court of Justice in 1971 did not provide authoritative guidance on the question of the termination of the Mandate for South West Africa; judicial statements on the lawfulness of South Africa’s continued presence in South West Africa were, therefore, to be regarded as obiter dicta. The United Nations was not competent to determine or modify unilaterally the international status of South West Africa. This view was reflected in the Advisory Opinion of the International Court of Justice in 19504 and in the various resolutions and deliberations of the United Nations Organization which had sought cooperation from the Republic of South Africa in the final settlement of the South West Africa situation, and which had recognized the continuing authority of the Republic over South West Africa pending such settlement (pp. 475-477).

   Per Justice Strydom: (1) Internal sovereignty was dependent upon the exercise of exclusive and effective control rather than upon international recognition. Although the international community regarded the Mandate for South West Africa as terminated, the Government of South Africa continued to exercise exclusive and effective control over the territory. The Court was, therefore, satisfied that the Government had internal sovereignty and was competent to legislate for the territory. Obligations incurred by international treaties and the resolutions of international organizations could be distinguished from customary international law in that they required incorporation into municipal law by legislative act before the courts of South Africa would give effect to them. General Assembly resolution 2145 (XXI) and Security Council resolution 276 (1970) had not been incorporated into municipal law and therefore could not affect the rights of individuals in South West Africa. The advisory opinions of the International Court of Justice on the status of South West Africa were also not binding upon South Africa. In cases of conflict between municipal law and international law or international opinion the courts must give effect to municipal law. Proclamations 198 and R131 would therefore be upheld (pp. 477-480).

   (2) A finding that the Government of South Africa exercised exclusive and effective control was conclusive with regard to the applicant’s contention that the Mandate had been terminated. The Court was not competent to determine whether the Government of South Africa still regarded the territory as falling within its sovereignty and it also made it unnecessary for the Court to determine the validity or existence of the Mandate, or whether the Government exercised de jure or de facto control in South West Africa (p. 481).

   (3) The terms of the Mandate for South West Africa had not been incorporated into the municipal law of South Africa. The South African Parliament enjoyed unlimited legislative power over the territory which was in no way curtailed by the terms of the Mandate. The applicant’s contention that the Proclamations were in conflict with superior provisions of municipal law must fail (pp. 482-485).

   Mr. Binga appealed to the Appellate Division of the Supreme Court of South Africa. On appeal, he maintained:

   (i) That section 38(1) of the South West Africa Constitution Act 39 of 1968 did not confer powers upon the State President to make laws which conflicted with the Mandate for South West Africa. Proclamation 198, he alleged, was contrary to article 4 of the Mandate and was therefore invalid; and

   (ii) That the applicant could not be called for military service at Walvis Bay because section 1(1) of Proclamation 198 restricted liability for non-whites to military service within the territory of South West Africa.

   Held (unanimously): — The appeal was dismissed.

   (1) Under the terms of section 38(1) of the South West Africa Constitution Act 39 of 1968 as amended by section 1 of the South West Africa Constitution Amendment Act 95 of 1977, the South African Parliament had conferred upon the State President of the Republic of South Africa plenary powers of

   legislation in respect of South West Africa which were as wide as those possessed by Parliament itself. Even if it was assumed in the appellant’s favour, therefore, that the provisions of the Mandate for South West Africa had been incorporated into municipal law by legislative act, these provisions remained subject to repeal or amendment by the State President acting under section 38(1). It was not to be presumed that Parliament when enacting the South West Africa Constitution Act 39 of 1968 had intended to give effect to international obligations arising under the Mandate for South West Africa. Section 38(1) did not indicate an intention to limit the exercise of power by the State President to that which was in conformity with the terms of the Mandate. It was therefore unnecessary to consider whether Proclamation 198 was contrary to Article 4 of the Mandate (pp. 486-495).

   (2) The reference to the territory of South West Africa in Section 1(1) of Proclamation 198 related to the class of non-whites who were now eligible for military service. The words were intended to restrict the effects of Proclamation 198 to the non-white inhabitants of the territory of South West Africa; they were not intended to restrict the performance of military service by this class to the territory of South West Africa. Under section 138 of the Defence Act the Minister of Defence could direct the...