Qunu stand­off

Daugh­ters take on dad’s will

Sunday Times - - Front Page - By ZINGISA MVUMVU

● Nel­son Man­dela’s fam­ily are em­broiled in a fresh le­gal bat­tle over his es­tate.

Ze­nani and Zindzi Man­dela are head­ing to the Con­sti­tu­tional Court to chal­lenge their fa­ther’s de­ci­sion to leave the fam­ily home in Qunu, in the East­ern Cape, un­der the cus­to­di­an­ship of the Nel­son Rolih­lahla Man­dela Fam­ily Trust, which ad­min­is­ters it to the ben­e­fit of the Man­dela fam­ily, in­clud­ing his third wife, Graça Machel, who has since waived her rights to the prop­erty.

Win­nie Madik­izela-Man­dela’s daugh­ters are mount­ing the court chal­lenge de­spite her sim­i­lar ap­pli­ca­tion hav­ing failed in the high court and the Supreme Court of Ap­peal.

Ze­nani and Zindzi be­lieve there is a prospect of the Con­sti­tu­tional Court ar­riv­ing at a dif­fer­ent out­come with a prece­dentset­ting judg­ment “on the pro­tec­tion of the rights of women un­der cus­tom­ary law”.

The two were ap­pointed ex­ecu­tors of their mother’s es­tate in April and this is the first time that they have be­come di­rectly in­volved in the le­gal mat­ter she ini­ti­ated in 2014.

In their ap­pli­ca­tion for leave to ap­peal in the Con­sti­tu­tional Court, the pair in­sist the Qunu prop­erty should be taken away from Machel, an ex­ecu­tor of Man­dela’s es­tate.

They ar­gue 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.

Ac­cord­ing to the sis­ters, they de­cided to pro­ceed with the case de­spite their mother’s death be­cause of “pub­lic con­sid­er­a­tions” that were close to her heart.

They say in court pa­pers these in­cluded the pro­tec­tion of women un­der cus­tom­ary law and the ex­tent to which such rights are con­sti­tu­tion­ally guar­an­teed.

Their lawyer, Mvuzo No­tyesi, told the Sun­day Times: “The prin­ci­pal is­sue in the whole case, ac­cord­ing to Mama Win­nie her­self and now Ze­nani and Zindzi, is to ob­tain a le­gal, de­fin­i­tive po­si­tion on the rights of women over prop­er­ties that are ac­quired un­der tribal law.

“When peo­ple di­vorce, the fo­cus is usu­ally on ur­ban prop­erty and the 50/50 share of such prop­er­ties, but with ru­ral prop­erty, a

The in­ter­est of Ze­nani and Zindzi is to make sure the case pro­ceeds as their mother wanted un­til it reaches its log­i­cal conclusion Mvuzo No­tyesi

Ze­nani and Zindzi Man­dela’s lawyer

man au­to­mat­i­cally as­sumes own­er­ship, which is against the prin­ci­ple of equal­ity and equal ac­cess to land and prop­erty.

“The in­ter­est of Ze­nani and Zindzi is to make sure the case pro­ceeds as their mother wanted un­til it reaches its log­i­cal conclusion.”

Madik­izela-Man­dela’s case was dis­missed twice by the su­pe­rior courts, largely on the grounds that she had un­rea­son­ably de­layed for 17 years, dur­ing which she never laid claim to the Qunu prop­erty.

The Qunu land was do­nated to Man­dela in 1997 by the lo­cal tribal au­thor­ity, which was af­firmed by the serv­ing land af­fairs min­is­ter at the time.

Ad­vo­cate Ge­orge Bi­zos SC, a long-serv­ing lawyer of Man­dela and one of the ex­ecu­tors of his es­tate, is op­pos­ing Ze­nani and Zindzi’s court bid.

In an af­fi­davit filed at the Con­sti­tu­tional Court, Bi­zos ar­gues that there are no prospects of suc­cess in this mat­ter be­cause there are no con­sti­tu­tional is­sues to raise.

Bi­zos also in­sists that the cus­tom­ary mar­riage be­tween Man­dela and Madik­ize­laMan­dela was dis­solved “fac­tu­ally and legally” by a court of law.

“The ap­pli­cants’ claim that cus­tom­ary mar­riage was never dis­solved is premised on the dis­cred­ited idea that lobola was not re­turned.

“Ex­pert opin­ion sub­mit­ted be­fore the high court estab­lished that whether or not lobola is to be re­turned is the choice of the per­son who paid the lobola, in this case Mr Man­dela.

“The cru­cial ques­tion to de­ter­mine the dis­so­lu­tion of a cus­tom­ary mar­riage is whether it is clear from the con­duct of the par­ties that they no longer in­tended to be bound by mar­i­tal bonds,” Bi­zos says in the court pa­pers.

To this end, he says, the clear­est in­di­ca­tion that Man­dela in­tended to cut ties with Madik­izela-Man­dela was their ceas­ing to stay to­gether in 1992 and the sub­se­quent di­vorce in 1996.

Ac­cord­ing to Bi­zos, the build­ing of the home be­gan when Man­dela and Madik­ize­laMan­dela were no longer liv­ing to­gether, and Madik­izela-Man­dela had “never made any at­tempt” to claim own­er­ship of the prop­erty de­spite hav­ing been aware of the con­struc­tion when it be­gan in 1992.

No­tyesi said he was con­vinced the Con­sti­tu­tional Court would rule in favour of his clients and de­clare that the Qunu home “was not an exclusive prop­erty of Madiba but their joint prop­erty” with Madik­izela-Man­dela.

Pic­ture: GCIS

Ze­nani and Zindzi Man­dela, pic­tured in April at Four­ways Memo­rial Park, Jo­han­nes­burg, at their mother (inset) Win­nie Madik­ize­laMan­dela’s fu­neral. Right, Graça Machel, Nel­son Man­dela's third wife and a ben­e­fi­ciary of his es­tate.

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