I would like first to convey deep condolences on behalf of King Dalindyebo Zwelibanzi to the daughters and grandchildren of MaKhulu Winnie Madikizela-Mandela over their saddest loss.
His Majesty is still shocked with disbelief at her passing. He hoped she would live longer and that someday he would pay her a visit with handful of gifts since he missed her 80th birthday. Makhulu Winnie was a source of inspiration for his Majesty, his late Father King Sabata Jonguhlanga and the family during the difficult times of persecution by the apartheid governments.
Reflecting on the similar persecution experienced by MaKhulu Winnie pre- and post-1994, the ANC stalwart Thandi Modise in an SABC TV on interview April 4 touched on what transpired when she was asked by Tata Nelson Mandela to inform MaKhulu of his intention to divorce her.
She vividly remembers MaKhulu replying “You don’t understand ...” and saying that according to AbaThembu customary law, she needed to be informed of her marriage dissolution by her in-laws.
I was delighted to have heard such a credible witness speaking on the issues relating to the divorce.
This was also contained in MaKhulu’s Mthatha High Court application concerning her Qunu land claim.
I once wrote about the Mandela couple’s double-edged marriage in an attempt to explain the basis of MaKhulu’s claim.
At the time when MaKhulu traditionally married Tata OmKhulu Mandela, customary marriages were not recognised by the apartheid state. In order to secure recognition of their marriages Africans had to follow the traditional values of their masters from Europe – to obtain civil marriage certification that was and is still underpinned by Western practice and law.
These govern a marriage’s formation and dissolution in a way that contradicts our African values and customs.
Under such circumstances Africans have ended up with double-sided marriages, ones governed by two sets of laws – one of African heritage and one Western.
These differs greatly on the manner in which a marriage is dissolved. When MaKhulu insisted that her in-laws needed to be the ones to inform her that her marriage was being dissolved she was not acting like a crazy person, but upholding traditional practice.
In this case, the claim for the Qunu site rests on three crucial things: first, whether the marriage was still in existence before Tata OmKhulu passed away; second, whether the Qunu site was part of the civil divorce settlement; and then whether or not the local chief allocated MaKhulu the site whilst Madiba was incarcerated.
Let’s take the first, the existence of a marriage before Tata’s death in December 2013. It is an undisputed fact that the couple entered into a customary marriage and performed all the necessary rituals needed to conclude such a union, including the payment of lobola.
In dismissing Makhulu’s claim in the High Court in Mthatha, senior counsel Vincent Maleka, representing Tata’s executors said, “The existence of the civil union would trump the customary marriage, which took place a few months after the customary marriage was concluded.”
On the technicality of the marriage being governed by two contradictory laws, one could argue that it would never be in the best interest of the parties to be ruled by two legal systems. One has to overrule or supercede the other.
However, if this argument is made in the context of the predicament facing Africans during the period when the marriage took place, surely further consideration must be given to the two different methods of dissolving the marriage.
Surely people don’t wish to turn a blind to what occurred at that point in time.
But to my surprise both the Mthatha High Court and Supreme Court of Appeal seem to have been convinced to do so, dismissing MaKhulu’s court applications with costs.
On this point alone, I’m not convinced that justice was done. The civil marriage was entered into for the sake of obtaining state recognition and some of the attendant securities. But it is opportunistic to overlook ordinary African customary rights on the basis of a one-sided version with no factual context.
Whilst a civil marriage dissolution can be acknowledged in this case and is supported by documentary evidence, the customary side of dissolving the marriage never took place.
Secondly, the executors’ legal team did not explain why Qunu was never part of the civil marriage dissolution. They concentrated instead on asking why MaKhulu had waited so long before making her application – 16 years after the civil marriage was dissolved.
Surely they needed to back their questions about why the Qunu site was not in the divorce settlement in the context of it being attained through traditional means – through a recognised customary union, one which was, in fact, still in existence and therefore could not have been part of the civil marriage divorce settlement.
And when the will was unpacked after Tata passed away MaKhulu was correct to say she did not know about the site being registered in Tata’s name. Given that a will is secret, how would she have known about the registration of a title deed that she was excluded from?
Thirdly, the local Queen Nokwanele Balizulu has conceded that her brother Chief Balizulu demarcated a small piece of land under Madikizela-Mandela’s name where the first house, a replica of the house Tata Mandela lived in at Victor Verster prison, was located.
She differs with MaKhulu as far as an extension is concerned – in that in 1996 she extended the land/site for Tata.
It is much clearer from the queen’s version that an extension of the site can never be considered as making a new site, but is an addition to the existing one.
As the custodian of customary law the queen could also agree on the traditional procedure to be followed in dissolving a customary marriage, but until all due processes are complete, the union stands.
In this case logic dictates that even the additional land was co-owned by the parties.
Currently customary marriages are being registered thanks to the new government’s approach. However, people still have both civil and customary marriages, especially with regard to lobola negotiations and payments and other traditional rituals.
I will leave this issue for now to avoid people being offended by the truth.
MaKhulus’s fight was not only for her rights based on customary law provided under chapter 12 of the constitution, but also for those women and men who are prejudiced every time they put up a claim based on their traditional value system.
They battle to obtain a fair hearing. And black lawyers have years of study and experience in arguing cases in a Roman Dutch law-inclined judicial system.
MaKhulu fought for human rights and social justice to the end, where no one is excluded by race and a belief system.
May your dedication, MaKhulu, continue to inspire young and old and shift the agenda from self-centredness to thinking about African identity. For young people to dream big the emphasis can never be on who is a level one to seven blesser, or who is getting dumped or who has the most expensive cars or the longest manicured fingernails or best hair.
Having been fortunate to hear MaKhulu’s stories about South Africa prior to and post 1994 during a December visit, I’m inspired to continue writing to express some of the thinking on issues she spent her life fighting for. She left me with memories I will cherish forever and I admit to feeling that our almost four-hour discussion was one of those precious occasions that happen once in a lifetime.
Hamba kakuhle Nobondla, MaKhulu. Your king found love and comfort from you. Thank you for endlessly fighting for his cause when no one else really cared.
He told me you did the same for his father, King Jonguhlanga. When he had to leave his kingdom and found himself in the wilderness, you ensured the protection of his family, including his children, and mothered them.
Your good deeds will never fade from our memories. Your fight for a place at Qunu where to find rest will never die.
I know it was your deepest wish that your son and also your king be released from prison by now and for him to lead your burial when it occurs, with the dignity it deserves according to our custom.
Prince Langalibalele Mthunzi Ngonyama is spokesman for King Zwelibanzi Buyelekhaya Dalindyebo
Bury MaKhulu according to custom
His Majesty is still shocked with disbelief at her passing. He hoped she would live longer and that someday he would pay her a visit with handful of gifts since he missed her 80th birthday. Makhulu Winnie was a source of inspiration for his Majesty, his late Father King Sabata Jonguhlanga and the family during the difficult times of persecution by the apartheid governments.
Reflecting on the similar persecution experienced by MaKhulu Winnie pre- and post-1994, the ANC stalwart Thandi Modise in an SABC TV on interview April 4 touched on what transpired when she was asked by Tata Nelson Mandela to inform MaKhulu of his intention to divorce her.
She vividly remembers MaKhulu replying “You don’t understand ...” and saying that according to AbaThembu customary law, she needed to be informed of her marriage dissolution by her in-laws.
I was delighted to have heard such a credible witness speaking on the issues relating to the divorce.
This was also contained in MaKhulu’s Mthatha High Court application concerning her Qunu land claim.
I once wrote about the Mandela couple’s double-edged marriage in an attempt to explain the basis of MaKhulu’s claim.
At the time when MaKhulu traditionally married Tata OmKhulu Mandela, customary marriages were not recognised by the apartheid state. In order to secure recognition of their marriages Africans had to follow the traditional values of their masters from Europe – to obtain civil marriage certification that was and is still underpinned by Western practice and law.
These govern a marriage’s formation and dissolution in a way that contradicts our African values and customs.
Under such circumstances Africans have ended up with double-sided marriages, ones governed by two sets of laws – one of African heritage and one Western.
These differs greatly on the manner in which a marriage is dissolved. When MaKhulu insisted that her in-laws needed to be the ones to inform her that her marriage was being dissolved she was not acting like a crazy person, but upholding traditional practice.
In this case, the claim for the Qunu site rests on three crucial things: first, whether the marriage was still in existence before Tata OmKhulu passed away; second, whether the Qunu site was part of the civil divorce settlement; and then whether or not the local chief allocated MaKhulu the site whilst Madiba was incarcerated.
Let’s take the first, the existence of a marriage before Tata’s death in December 2013. It is an undisputed fact that the couple entered into a customary marriage and performed all the necessary rituals needed to conclude such a union, including the payment of lobola.
In dismissing Makhulu’s claim in the High Court in Mthatha, senior counsel Vincent Maleka, representing Tata’s executors said, “The existence of the civil union would trump the customary marriage, which took place a few months after the customary marriage was concluded.”
On the technicality of the marriage being governed by two contradictory laws, one could argue that it would never be in the best interest of the parties to be ruled by two legal systems. One has to overrule or supercede the other.
However, if this argument is made in the context of the predicament facing Africans during the period when the marriage took place, surely further consideration must be given to the two different methods of dissolving the marriage.
Surely people don’t wish to turn a blind to what occurred at that point in time.
But to my surprise both the Mthatha High Court and Supreme Court of Appeal seem to have been convinced to do so, dismissing MaKhulu’s court applications with costs.
On this point alone, I’m not convinced that justice was done. The civil marriage was entered into for the sake of obtaining state recognition and some of the attendant securities. But it is opportunistic to overlook ordinary African customary rights on the basis of a one-sided version with no factual context.
Whilst a civil marriage dissolution can be acknowledged in this case and is supported by documentary evidence, the customary side of dissolving the marriage never took place.
Secondly, the executors’ legal team did not explain why Qunu was never part of the civil marriage dissolution. They concentrated instead on asking why MaKhulu had waited so long before making her application – 16 years after the civil marriage was dissolved.
Surely they needed to back their questions about why the Qunu site was not in the divorce settlement in the context of it being attained through traditional means – through a recognised customary union, one which was, in fact, still in existence and therefore could not have been part of the civil marriage divorce settlement.
And when the will was unpacked after Tata passed away MaKhulu was correct to say she did not know about the site being registered in Tata’s name. Given that a will is secret, how would she have known about the registration of a title deed that she was excluded from?
Thirdly, the local Queen Nokwanele Balizulu has conceded that her brother Chief Balizulu demarcated a small piece of land under Madikizela-Mandela’s name where the first house, a replica of the house Tata Mandela lived in at Victor Verster prison, was located.
She differs with MaKhulu as far as an extension is concerned – in that in 1996 she extended the land/site for Tata.
It is much clearer from the queen’s version that an extension of the site can never be considered as making a new site, but is an addition to the existing one.
As the custodian of customary law the queen could also agree on the traditional procedure to be followed in dissolving a customary marriage, but until all due processes are complete, the union stands.
In this case logic dictates that even the additional land was co-owned by the parties.
Currently customary marriages are being registered thanks to the new government’s approach. However, people still have both civil and customary marriages, especially with regard to lobola negotiations and payments and other traditional rituals.
I will leave this issue for now to avoid people being offended by the truth.
MaKhulus’s fight was not only for her rights based on customary law provided under chapter 12 of the constitution, but also for those women and men who are prejudiced every time they put up a claim based on their traditional value system.
They battle to obtain a fair hearing. And black lawyers have years of study and experience in arguing cases in a Roman Dutch law-inclined judicial system.
MaKhulu fought for human rights and social justice to the end, where no one is excluded by race and a belief system.
May your dedication, MaKhulu, continue to inspire young and old and shift the agenda from self-centredness to thinking about African identity. For young people to dream big the emphasis can never be on who is a level one to seven blesser, or who is getting dumped or who has the most expensive cars or the longest manicured fingernails or best hair.
Having been fortunate to hear MaKhulu’s stories about South Africa prior to and post 1994 during a December visit, I’m inspired to continue writing to express some of the thinking on issues she spent her life fighting for. She left me with memories I will cherish forever and I admit to feeling that our almost four-hour discussion was one of those precious occasions that happen once in a lifetime.
Hamba kakuhle Nobondla, MaKhulu. Your king found love and comfort from you. Thank you for endlessly fighting for his cause when no one else really cared.
He told me you did the same for his father, King Jonguhlanga. When he had to leave his kingdom and found himself in the wilderness, you ensured the protection of his family, including his children, and mothered them.
Your good deeds will never fade from our memories. Your fight for a place at Qunu where to find rest will never die.
I know it was your deepest wish that your son and also your king be released from prison by now and for him to lead your burial when it occurs, with the dignity it deserves according to our custom.
Prince Langalibalele Mthunzi Ngonyama is spokesman for King Zwelibanzi Buyelekhaya Dalindyebo
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