OPINION | Winnie fought for what she was due

When our parents name us they usually pray to God to guide them in choosing a name with significant and lasting meaning.

The name Nomzamo (Good deeds/efforts) has made an everlasting mark in our country, in Africa and internationally.

Nomzamo, your endeavours left us with a legacy we’ll always be proud of. You set the standard so high because you never believed in being mediocre. Excellence is what Makhulu Winnie stood for until the end.

You have gone through so many dark valleys – including 491 days of solitary confinement where you suffered great humiliation such as hosepipe “showers” early in the cold mornings and the kind of loneliness that drove you to thoughts of suicide and to banging your head against the cell wall.

After all of these unbearable life experiences, after triumphing in so many battles in the apartheid era, after a life of sacrifices, one would have thought that after the signing of our constitution in 1996, rest and the chance to enjoy the fruit of your hard work were due.

But when the cloud should have lifted you were faced with another tough battle – the legal one for the Qunu site which was officially granted to you in recognition of your customary marriage. This must have caused you the greatest pain.

Some have portrayed you as an opportunist but you only wanted what belonged to you.

It is inspiring that your lovely, brave daughters have decided to take up the fight where you left it. I fully concur with their argument that “under customary law their mother had rights over the Qunu property, which should be transferred to them as children born from the customary law marriage between their parents”.

This application now seeks relief via the Constitutional Court.

Of course, some like advocate George Bizos SC and the Supreme Court of Appeals (SCA) long ago concluded that there was no prospect of success.

Their argument was premised on Makhulu Winnie’s delay in contesting the “donation” of the Qunu site to Madiba by the Minister of Land Affairs in November 1997.

But the fact is, the Qunu traditional leader Nkosikazi Nokwanele Balizulu has testified that the first portion of the Qunu site was allotted to Makhulu Winnie between 1988 and 1989.

She remembers Makhulu arriving in a helicopter when the site demarcation took place. It must have been very exciting for Qunu village. The site is where the first Qunu house was built.

Nkosikazi Balizulu also pointed out that an extension to the site was made – one that almost got her into trouble with the local communities as the land had been used for grazing.

So she decided to ask his Majesty King Zwelibanzi to intervene. Further consultations with the communities took place and they agreed.

The SCA accepted the corroborating evidence led by the executors of the former late president’s will, that an extension to the property was granted by the local chief in consultation with King Zwelibanzi. This was done between 1995 and 1996.

During the SCA appeal hearing, the executors argued that “on the 05 January 1996 , Chief Mtirara wrote a letter to the magistrate in Mthatha stating that the extension of the original site of Mr Mandela from nine hectares to approximately 101.5 hectares carried the approval of the relevant tribal authority”.

In addition, the executors pointed out that “the allotment of the property to Mr Mandela was done publicly where King Dalindyebo and other local chiefs were present representing the Ebotwe Tribal Authority”.

It is important here to note that the final decree of divorce for the civil marriage was only granted on March 19 1996 – at least two months after the site extension was granted.

The fact is, the tribal authority of Ebotwe granted the site extension to the couple – who were at that point bound by both civil and customary marriage.

Since the core function of the tribal authority is to uphold customary values and principles when deciding cases, it would have been completely absurd had it granted the site extension to one person not the couple. Out-of-community-of-property marriage does not stand in the customary union set up. This a tribal authority knows.

It is also important to note that the divorce decree never included the Qunu site settlement. Because civil marriage dissolution takes into account title deed registered properties, it could not include the Qunu site which was acquired by traditional means.

It is also important to note that the minister for land affairs only officially registered the Qunu site on November 16 1997 – almost two years after the divorce decree was issued.

Both the Mthatha High Court and SCA have sought to maintain that customary marriage follows the same principles as civil marriage, in this case those of out-of-community of property. This would mean that if the land was donated to Nkosi Dalibhunga (former president Mandela), it was his alone.

But by doing this, they have misdirected themselves. Customarily no man or woman is given a site unless he or she is married (and especially not 24 years ago).

This is what led Makhulu Winnie to fight so hard for what belonged to her.

Yet this point has been completely ignored throughout the legal proceedings. This is the source of the problem – a misconception.

The SCA was persuaded by the executor’s argument that if Makhulu Winnie believed the site was hers, she should have been worried when she saw it being subsequently developed by the former president.

They also raised questions about how much of a financial contribution she made to upgrading the properties.

Again, this thinking fails to appreciate that under customary marriage it is the man who builds and the woman who keeps the household warm.

Both courts completely missed this crucial point.

Our last hope now rests with the Constitutional Court.

That Makhulu allowed Nkosi Dalibunga to enjoy staying at Qunu without seeking to evict him was not because she did not believe the site was hers as the estate executors managed to convince the SCA, causing them to dismiss Makhulu’s appeal.

Rather, what they all failed to understand is that she could not remove her husband from their land because she was still customarily married to him.

The proceedings to dissolve a customary marriage normally start with a hearing presided over by elders from both families – those who first helped to constitute the customary marriage. If a relationship can’t be fixed after both parties have stated their cases, the next issue to deal with is the return of the lobola.

Makhulu’s argument is that such a step did not take place.

The SCA has not dealt with this, hence the application to the Constitutional Court. But in terms of custom the correct channel would be to take the matter to senior Abathembu elders for a decision.

But such steps were overtaken by events because the land in question was registered in the former president’s name, excluding Makhulu Winnie, and the will was concluded – all without her knowledge.

In making their submission, the estate executors’s attorneys argued that the former president had, in his affidavit, stated “[I]t is correct that it is customary among the Thembus for a person in my position to have regard to our customs and traditions. I have respected them in the past and will continue to do so now and in future. However I know of no custom or tradition that deals with the dissolution of a civil marriage by the courts”. Aah, Dalibhunga.

But this in no way suggests that it is possible to dissolve a civil marriage in the same way as a customary marriage. Nor does it negate the need to dissolve the customary marriage – and through customary means.

The claim is therefore correctly made that the customary requirement of going back to onozakuzaku (those who first initiated the union and then negotiated the lobola) was never fulfilled.

Beyond that, since Makhulu Winnie did not initiate the dissolution, she could not have taken the matter up through the customary process.

In sum, no one says a marriage cannot be dissolved when there is an aggrieved party, but when that happens customary procedures must be followed.

There was an attempt by lawyers representing Tata Mandela’s executors to argue that a customary marriage existed in 1958 but it was later invalidated by the civil marriage that took place on June 14 1958 at Ludeke Mission in Mbizana.

But let us for a moment consider Tata Mandela’s relationship with custom. As we know he was born into the royal family. What may not be so well known is that his father, Nkosi Mphakanyiswa, once defied a summons to appear before a local magistrate. He did so because he held that, according to custom, he was required to submit to his king, not a magistrate in whom the power to summon a chief had never been invested through AbaThembu custom.

The brutal state system stripped the Nkosi of his chieftainship for his refusal.

I will forever thank my King Zwelibanzi Dalindyebo for correcting the wrongs of the past and ensuring Nkosi Mphakanyiswa’s powers were restored by giving his chieftancy to his son, Nelson Mandela. Because Madiba was already retired, he decided to pass the baton on to his grandson and Nkosi Zwelivelile Mandla Mandela was installed as traditional leader of uMvezo.

But let me return to Tata Mandela, quoting him the executors’ lawyers acknowledged that he respected AbaThembu customs and that he was raised practising them. Also, that by entering into a civil marriage, he never intended to defy his elders efforts to conclude all lobola negotiations as a prerequisite for his customary marriage (and later civil marriage).

It is absolutely incorrect for people such as Bizos to want to portray Tata Omkhulu Mandela as someone who grew to look down on his customary marriage and by extension defied his elders efforts on his behalf.

One would love the Constitutional Court to ventilate these issues because in so doing, people in deep rural areas will know that their customary practices are also recognised and that they are part of the new South Africa.

The civil marriage Act is not the constitution. Both forms of marriage must be given equal status without one dodging the other on a technical basis.

If the Constitutional Court avoids adjudicating on these issues – because they are not familiar with them, not because there is no substance and prospect of success – a precedent will be created at expense of those deemed illiterate who reside in deep valleys and on hills of our country.

It will imply that when the 1996 constitution was passed the people residing in rural areas unknowingly sold their souls and origin to western civilisation, which does not reflect our true being.

There is no malicious intent here to ignore the pain or grief that must have caused Tata Omkhulu Mandela to take steps to dissolve his marriage.

But direction needs to be given in the interest of fair practice, our heritage and the sovereignty of our kingdom. The bottom line is that Makhulu Winnie was simply obeying and respecting the rules underpinning her customary marriage.

Customary law is also recognised among the authoritative laws that make up SA law. So it is time to put that recognition to the test. And no selected opinion from a certain customary “expert” or customary lawbook writer is the final authority on AbaThembu kingdom custom. Aah, Nobandla.

Prince Langalibalele Mthunzi Ngonyama is from AbaThembu kingdom