Winnie Madikizela-Mandela’s bid to lay claim to her late ex-husband’s Qunu home has been dismissed by the Mthatha High Court.
The property was bequeathed to the Nelson Rholihlahla Mandela Family Trust by Mandela for the benefit of the Mandela family — including his third wife Graça Machel and her children.
But Madikizela-Mandela claimed that the Qunu property was given to her by the tribal authority while Mandela was still in prison and that she had not anticipated that the land would be given to Machel.
Madikizela-Mandela claimed that while the civil union was dissolved by divorce‚ the customary marriage which took place in 1958 by payment of lobola to her family‚ had not been dissolved.
Her argument concerned her constitutional rights to the property as Mandela’s wife. She also argued that since there was no dissolution of the customary marriage‚ it still existed even after the civil divorce.
She was also seeking an order to set aside a decision by then minister of land affairs Derek Hanekom on November 16 1997 to donate land to Mandela who was state president at the time.
In their heads of argument‚ her lawyers argued that Hanekom should have sought the approval of the Thembu community and Madikizela-Mandela beforehand.
They said Mandela did not have the power to dispose of the land.
In their replying affidavit‚ the executors of Mandela’s estate had argued that the civil marriage “overrode” the customary marriage. This‚ Madikizela-Mandela’s lawyers said‚ was legally flawed.
They argued that the customary marriage was a separate legal act which had specific consequences under customary law.
“To hold the civil divorce dissolved the customary marriage would be to invoke the antiquated and highly offensive repugnancy principle which subjugated customary law to civil law.”
The document states that the Mandelas had not divorced under customary law when the Recognition of Customary Marriages (RCM) Act came into effect in 1996.
“. in the absence of an order dissolving our customary marriage‚ that marriage still subsisted at the time of Mr Mandela’s death. On this basis‚ . the disposal under Mr Mandela’s will invalid .”
Winnie Madikizela-Mandela loses claim to Qunu house
The property was bequeathed to the Nelson Rholihlahla Mandela Family Trust by Mandela for the benefit of the Mandela family — including his third wife Graça Machel and her children.
But Madikizela-Mandela claimed that the Qunu property was given to her by the tribal authority while Mandela was still in prison and that she had not anticipated that the land would be given to Machel.
Madikizela-Mandela claimed that while the civil union was dissolved by divorce‚ the customary marriage which took place in 1958 by payment of lobola to her family‚ had not been dissolved.
Her argument concerned her constitutional rights to the property as Mandela’s wife. She also argued that since there was no dissolution of the customary marriage‚ it still existed even after the civil divorce.
She was also seeking an order to set aside a decision by then minister of land affairs Derek Hanekom on November 16 1997 to donate land to Mandela who was state president at the time.
In their heads of argument‚ her lawyers argued that Hanekom should have sought the approval of the Thembu community and Madikizela-Mandela beforehand.
They said Mandela did not have the power to dispose of the land.
In their replying affidavit‚ the executors of Mandela’s estate had argued that the civil marriage “overrode” the customary marriage. This‚ Madikizela-Mandela’s lawyers said‚ was legally flawed.
They argued that the customary marriage was a separate legal act which had specific consequences under customary law.
“To hold the civil divorce dissolved the customary marriage would be to invoke the antiquated and highly offensive repugnancy principle which subjugated customary law to civil law.”
The document states that the Mandelas had not divorced under customary law when the Recognition of Customary Marriages (RCM) Act came into effect in 1996.
“. in the absence of an order dissolving our customary marriage‚ that marriage still subsisted at the time of Mr Mandela’s death. On this basis‚ . the disposal under Mr Mandela’s will invalid .”
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