Winnie fights for Madiba’s Qunu home

CIVIL and customary law came under the spotlight in the Mthatha High Court yesterday as Winnie MadikizelaMandela launched her claim to former president Nelson Mandela’s Qunu house.

The property was bequeathed to the Nelson Rolihlahla Mandela Family Trust by Mandela for the benefit of the Mandela family – including his third wife, Graca Machel, and her children.

But Madikizela-Mandela claims the Qunu property was given to her by the tribal authority while Mandela was still in prison and she had not anticipated that the land would be given to Machel.

She claims that while the civil union was dissolved through a divorce, the customary marriage which took place in 1958 by payment of lobola to her family had not been dissolved.

Madikizela-Mandela’s argument concerns her constitutional rights to the property as Mandela’s wife.

She also argues that since there was no dissolution of the customary marriage, it means that the customary marriage still existed.

She is also seeking an order reviewing and setting aside a decision taken by then land affairs minister Derek Hanekom on November 16 1997 to donate land to Mandela, who was the state president at the time.

She wants to challenge Hanekom’s approval of the registration of the property in Mandela’s name.

In their heads of argument, Madikizela-Mandela’s lawyers, Patrick Mtshaulana and Kameshni Pillay, argued that Hanekom should have sought the approval of the abaThembu community and Madikizela-Mandela beforehand.

Mtshaulana said Mandela did not have the power to dispose of the land.

In their replying affidavit, the executors of Madiba’s estate argued that the civil marriage overrode the customary marriage.

This, Madikizela-Mandela’s yers said, was legally flawed.

They argued that the customary marriage was a separate legal act which had specific consequences under customary law.

“To hold [that] the civil divorce

lawdissolved the customary marriage would be to invoke the antiquated and highly offensive repugnancy principle which subjugated customary law to civil law,” they said.

Speaking to the media yesterday, one of the respondents, Advocate George Bizos, said: “We contend that her [Madikizela-Mandela’s] claim is not a valid one because she did nothing about it for 17 years since the property had been registered.”

The hearing continues today.