botswana/namibia - Cour international de Justice

"5. Since the attached report was prepared I have received further information from an
inhabitant of the Island that in 1924 a Caprivi Chief named Liswaninyana applied to Captain
Neale, the Resident Magistrate at Kasane, for permission for his people to plough on the
Island and graze cattle there. This was evidently granted verbally as no written agreement is
known. At this time Government Oxen were grazing on the Island but they were removed in
1925. Before 1924 the same informant told me that there was one Caprivi family ploughing
there but they had no authority to do so.
6. In defence of the Claim to ownership on the grounds of prescription evidence could
therefore be produced to show that this Government occupied the Island in 1925. This fact
together with the acknowledgement by the people that they applied for permission to use the
Island in 1924 should cause any Claim of prescriptive rights to be rejected.
7. In conclusion it must be stated that the surrender of this Island would prevent this Territory
from having free use of the Chobe River, which may one day become an extremely important
waterway." (Botswana Memorial, Annex 22)
38. This refers to a clear exercise of jurisdiction on behalf of the Bechuanaland Protectorate.
The attitude of Captain Eason had been that Kasikili/Sedudu did not form part of the German
Caprivi in 1912. It is very unlikely that other British officials would take a different view only
twelve years later.
39. The documents available show that in the period 1915 to 1929 there was no dispute
concerning the boundary in the vicinity of Kasikili/Sedudu Island. Thus the relevant
Government report on administration of the Caprivi Zipfel in the period 1914 to 1922 makes
no reference to a boundary problem affecting the relevant sector of the Chobe River: see
Namibia Memorial, Annex 52.
40. It is significant that, when the Dominions Office in London canvassed boundary issues
arising from the Anglo-German Agreement in the period 1926 to 1932, no reference was
made to any problem relating to Kasikili/Sedudu: see Namibia Memorial, Annexes 53-57 . In
the period 1930 to 1932 the South African Government, in its role as administrator of the
Mandate in South West Africa, and the British Government, representing the Governments of
Northern Rhodesia and the Bechuanaland Protectorate, were involved in a series of
transactions relating to the siting of the western terminal beacon of the northern boundary of
the Caprivi Zipfel on the line from Andara to Katima Mulilo. This issue was related to a
technical problem encountered in applying the Anglo-German Agreement, once it became
clear that Andara was south of the eighteenth parallel. The details are not important for
present purposes : see Botswana Counter-Memorial, Annex 15; and the Namibian Memorial,
Annexes 53 to 57. It is the absence of any reference to the boundary in the vicinity of
Kasikili/Sedudu Island which is significant. It was clearly not on the agenda.
41. In the period 1930 to 1947 there were no developments relating to Kasikili/Sedudu and no
evidence of any challenge to the status quo recognised by Lord Harcourt (in 1911), Captain
Eason (in 1912) and Captain Neale (in 1924). The absence of any dispute in this period is
confirmed by the Magistrate for the Eastern Caprivi, Major Trollope, in his Report on the
Administration of the Eastern Caprivi Zipfel, prepared in 1940 (Namibia Memorial, Annex
58). From 1939, the Eastern Caprivi was administered by the Department for Native Affairs,
South Africa (Proclamation No. 147 of 1939 (South Africa)), and Major Trollope was the first