botswana/namibia - Cour international de Justice

748. At this point the South African Government obtained legal advice and the outcome is
contained in a letter from the Secretary of Justice to the Secretary for External Affairs, dated
12 June 1948. The conclusions reached were as follows:
"The joint report submitted to us gives valuable evidence to support a claim by the Union, as
Mandatory Power, to Kasikili Island on the ground of prescription, if it should be established
that the northern waterway of the Chobe River would otherwise have formed the boundary.
The evidence would be substantially complete if it could be shown that, under German rule
over South-West Africa, administrative acts were performed on the island, and that such acts
were continued under the mandatory rule without objection on the part of the Bechuanaland
authorities. For instance, do tribesmen on Kasikili Island pay rates in respect of any trust fund
established under Proclamation No. 27 of 1930?
The whole question is an appropriate one for negotiation between the Union and
Bechuanaland. It may be advisable to appoint a joint inter-territorial commission to
investigate further a possible change in the main course of the Chobe River and to gather
evidence of the use of sovereign rights over the island. If, of course, it could be ascertained
that the main channel of the river was south of the island when the Treaty was concluded, the
question of prescription would not arise." (Namibia Memorial, Annex 62)
749. When this letter is read as a whole it is clear that its premiss is that the main channel is
the northern channel, and the consequence is a recommendation to develop a claim 'on the
ground of prescription'. It may be noted that Namibia has not produced any evidence that
anyone on the island paid rates by virtue of Proclamation No. 27 of 1930.
750. In any event at this stage correspondence was initiated by South Africa with the British
Government. The Prime Minister's Office in Pretoria wrote to the British High Commissioner
(representing the Bechuanaland Protectorate) on 14 October 1948. The Union Government
admitted that the northern channel was the main channel and stated that:
"As there would appear to be no conflict of interests it should be possible to come to an
arrangement which is mutually satisfactory". (Botswana Memorial, Annex 23).
751. The interim response to this letter, from the High Commissioner's Office, was as follows:
"With reference to your letter No. P.M. 1/18/11 of the 14th October about the boundary
between the Bechuanaland Protectorate and the Eastern Caprivi Zipfel, I am directed by the
High Commissioner for Basutoland, the Bechuanaland Protectorate and Swaziland to inform
you that the Resident Commissioner of the Bechuanaland Protectorate has directed the
Assistant District Commissioner, Kasane, that tribesmen of the Caprivi Zipfel should be
allowed to cultivate land on Kasikili Island, if they wish to do so, under an annual renewable
permit.
2. The High Commissioner trusts that this arrangement will prove satisfactory to the
authorities in the Union." (Letter dated 4 November 1948; Botswana Memorial, Annex 24).
752. This letter indicates, in very clear terms, the view taken by the British side of the legal
status quo. The Memorial of Namibia underlines this when it makes an unconvincing attempt
to put a gloss on the document: