botswana/namibia - Cour international de Justice

- From the time of Botswana's independence in 1966 until the Pretoria Agreement of 1984,
there was no evidence of any acquiescence on the part of Botswana.
(G) Evidence of South African Acquiescence in the Period 1960 to 1992
784. As the Government of Botswana has already explained in Chapter 1 of this pleading,
from 1960 onward all cultivation on the island was prohibited by the authorities of the
Bechuanaland Protectorate and, subsequently, of Botswana: see above, Chapter 1, paras. 58-
64. According to the Namibian Memorial, the South African Government exercised authority
over the island at this period and such authority had been inherited from the German period.
785. In fact, no representation on the issue was made by the authorities in South-West-Africa
until March 1992. This silence is particularly significant because, according to the Namibian
case, cultivation by the people of the Caprivi was the form the alleged exercise of authority by
South Africa and its predecessor assumed. Moreover, according to the Namibian
Government's view of the facts, the island was regularly used for cultivation by people from
Kasika and any disruption of this pattern should have provoked an immediate response.
786. The evidence thus shows an acceptance by South Africa of the title of Botswana (and its
predecessor) over a period of thirty-two years, from 1960 until 1992. This evidence is
reinforced by the failure of South Africa to protest official maps of Botswana showing the
boundary in the northern channel in the period after independence.
(H) Conclusion: There is no evidence to support the alleged Title of Namibia on the
Basis of Prescription or Acquiescence
787. There is no evidence to support the alleged title of Namibia on the basis of prescription
or acquiescence. However, there is a preliminary obstacle to this basis of title, in that it is
contrary to principle to accept an adverse possession based upon the subversion of a recently
concluded boundary treaty. In any event, there is no evidence that German officials had an
intention to rely upon any acts of possession not based upon the Anglo-German Agreement,
and, in accordance with the principle of good faith, the presumption must be that no such
intention existed.
788. In so far as the conditions for the existence of title by prescription are concerned, the
Namibian Government deals with the requirement of a continuous and peaceful exercise of
State authority by the frequent reiteration of the assertion that the agricultural activities on the
island of Basubia from Kasika were capable of generating title. This view was first expressed
by the South African administrator, Trollope, in 1948. It was not a view held by the British
Government at any stage.
789. Far from any prescription having occurred, the first tentative formulation of a South
African claim was in a South African letter dated 14 February 1949 (Botswana Memorial,
Annex 25). Prior to this date there had been no dispute and, when the correspondence of the
period 1948 to 1951 developed, it was the South African Government which was seeking to
modify the legal status quo, and the contemporary documents show that the South Africa
officials were aware of this.
790. In relation to the period from 1951 until 1992 the Namibian case appears even more
threadbare. In 1951 British officials had affirmed the title based upon the Anglo-German