botswana/namibia - Cour international de Justice

demonstrated in Chapter 9, the legal advisers of the South African Government decided that
the only basis of claim (for South Africa) was prescription. In brief, it was South Africa which
had the role of supplicant and which was proposing a change in the status quo in her favour.
(E) When the British and Botswana Authorities prohibited use of the island in 1960
there were no protests from Namibian sources
(i) The Context
172. The main emphasis of the Namibian argument is upon title by prescription. This
argument consists of two planks: first, an alleged German/South African/Namibian possession
of the island and, secondly, a failure to protest on the part of the British/Botswana authorities.
The relevant passage in the Namibian Memorial is as follows:
"During the entire period from 1890 to 1966, when they were responsible for the
administration of Bechuanaland, the British authorities, with full knowledge of the facts set
forth in the two preceding sections concerning Namibian/Masubia occupation and use of
Kasikili Island and German and South African exercise of sovereignty there, failed to protest,
object or interfere in any way with the situation as it existed. As is shown in para. 258, infra,
this unbroken record of silence and passivity contrasted markedly with British conduct in
neighbouring areas where it was the colonial power. After Botswana became independent,
Botswana maintained its silence for almost two additional decades." (Namibian Memorial,
p.102, para. 255).
173. This passage rests upon assertions which are unfounded both in fact and in law and
which will be examined further in Chapter 9. According to Namibia the relevant period is
1890 to 1986. However, the key period is in reality 1960 to 1992.
(ii) The Prohibition of Use of the Island for Agricultural Purposes
174. As will be demonstrated in Chapter 9, the British authorities considered that
Kasikili/Sedudu Island formed part of the Bechuanaland Protectorate. Accordingly, they gave
permission for use of the island by people from the Caprivi and during the relevant period
they thus had no reason to protest the use of the Island by villagers from Kasika: see also
above, Chapter 1, para.37; and above, paras. 167-71.
175. In any event there is cogent evidence to the effect that it was in 1937 that the people of
Kasika stopped ploughing on Kasikili/Sedudu Island. This was the evidence of the relevant
Caprivi Chief, Munitenge Moraliswani II, during the JTTE hearings (Namibian Memorial,
Vol. III, Annex 2, p.209). The relevant part of the Transcript reads:
"Botswana Component: Right, thank you. Could he help us with the date when people
stopped ploughing Kasikili Island?
Honourable Chief: That was in 1937 when now a lot of elephants were now entering Caprivi
and then when people were ploughing it was found that those elephants were destroying their
fields, it's when they decided to move and come on the other side here in Caprivi.
Botswana Component: And could he help us by telling us whether that occurred before Chief
Liswaninyana died or just afterwards?