botswana/namibia - Cour international de Justice

Schuckmannsburg to pay it. (footnotes omitted) (emphasis supplied). (Namibian Memorial,
p.96, para. 239).
693. The final sentence refers to 'witnesses who testified to living and farming on the island'.
The oral evidence has been examined in Chapter 7, but it is necessary in the present context to
emphasise the unreliability of the Namibian oral evidence and, in particular, the assertions
that there was a village on the island. In any event, the witnesses who reported paying tax paid
it as residents of the village of Kasika in the Eastern Caprivi. Kasika was where the Chief had
his headquarters and where the school was: see above, paras. 465-90.
(vi) The Period 1966 to 1990: Reliance on South African Military Activities
694. In a further series of very generalised passages, the Namibian Memorial (pp.98-100,
paras. 245-50) skates over the period 1953 to 1990. No alleged evidence of possession of the
island appears except in one form. There is a certain focus upon the period of South African
'de facto control over Namibia' from termination of the Mandate (in 1966) until Namibian
independence (in 1990). It is in this context that the Namibian Memorial relies upon South
African military activities, in the following passage:
"The Island itself was within this military orbit. Witnesses testified to incidents of arrest and
punishment of Caprivi men caught on the Island. According to Annex 84, discussions were
held between the Republic of South Africa and Botswana in 1974-75, in which it was agreed
that the Island forms part of the Caprivi. At a second session between the two governments
regarding border matters held at Katima Mulilo in 1984, Botswana did not raise the issue,
indicating that it was prepared to acquiesce to the existing situation. The shooting incident
discussed in para. 284, infra, between a patrol boat of the South African Defence Force and a
unit of the Botswana Defence Force in October 1984, indicates that South Africa was
exercising jurisdiction over the Island by conducting military patrols in the southern channel."
(footnotes omitted) (Namibian Memorial, p.100, para. 248).
695. This passage presents a whole series of eccentric features. It assumes, without argument,
that military activities on the part of South Africa qualified as evidence of title to territory. In
the historical context this is problematical, to say the least. In the relevant period South Africa
launched attacks across the boundaries of neighbouring States whenever it saw fit. Such South
African military activities had no connection with issues of title or with international
boundaries. With reference to the alleged discussions of 1974 to 1975, the Government of
Botswana has no evidence of such discussions.
696. The meeting at Katima Mulilo concerning border matters was held in 1981 and not in
1984: see Botswana Memorial, Annex 39. Botswana's failure 'to raise the issue' can be
interpreted as evidence that the question of title was not then in issue. The reference to the
shooting incident of October 1984 as evidence of South African jurisdiction is hardly cogent:
it is more probable that the SADF patrols were indifferent to the location of the boundary. In
any event, this assertion was not made in the discussions during the meeting at Pretoria on 19
December 1984: see Botswana Memorial, Annexes 44-47. Indeed, during the meeting, a
member of the South African delegation referred to 'young hot-headed inexperienced troops:'
ibid., Annex 44, para 11; Annex 46, p.4.
(vii) Conclusion: no exercise of State authority by Namibia or its predecessors