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Which lasts longer: a civil marriage or a customary union?
That’s what the Eastern Cape High Court in Mthatha has to decide after a landmark case brought last week by Winnie Madikizela-Mandela, who is claiming her late ex-husband’s Qunu home on the grounds that she was never properly divorced from him.
The case has attracted the Congress of Traditional Leaders of SA, with its Eastern Cape provincial chairman, Nkosi Mwelo Nonkonyana, weighing in on the matter, saying he was looking forward to the judgment as it would give clarity on which system – customary marriage or civil union – should prevail.
This comes after Madikizela-Mandela filed court papers in October last year claiming ownership of the Qunu property near Mthatha, where her late ex-husband, former president Nelson Mandela, is buried.
In his will in 2014, Mandela bequeathed the home to the Nelson Rolihlahla Mandela Family Trust for use by his family, including his third wife, Graça Machel, and her children.
Madikizela-Mandela, who was divorced in a civil court by Madiba in 1996, was not mentioned in the will.
But through her lawyers, Advocates Patrick Mtshaulana SC and Kameshni Pillay SC, she argued in court last week that even though she was divorced by the statesman, her customary marriage remained in service through the civil union because the lobola paid by Madiba had not been returned to the Mandela family.
She also submitted to court that she was given the Qunu land where the property is situated by the community while Madiba was still in prison in 1986.
Nonkonyana said it was unfortunate that the Congress of Traditional Leaders of SA was alerted to the Madikizela-Mandela matter at a very late stage.
Nevertheless, the traditional leaders have requested documents from state attorneys to gauge whether or not to join later as friends of the court should the case proceed to a higher court. “We would have loved to make submissions of our own,” he said.
Nonkonyana, who is also chief of the amaBhala tribe in Pondoland in Flagstaff, attended the case at the Mthatha high court last week, saying it had implications not only for the veteran struggle hero, but for ordinary women, particularly those married in customary law.
He said traditional leaders were inclined to support women married in terms of “our traditions” rather than those of civil or church marriages.
AbaThembu King Buyelekhaya Dalindyebo also supported Madikizela-Mandela’s version in a statement last year.
Madikizela-Mandela said even the registration of the house under Madiba’s name was unlawful and should be set aside. “I submit, in terms of the customary law, that husbands who are married, or have been married in their lifetime to more than one wife, have a legal duty to establish houses for each wife that they marry; and each house must also be allotted property by the family head; and property which has not been allotted to a specific house is available for use and enjoyment by all members of the family,” read part of the court papers.
Advocate Vincent Maleka SC, representing the executors of the estate of the late former president, argued that had Madikizela-Mandela’s claim been brought before court 17 years earlier, it would have made more sense. As it stood, it was not based on documentary evidence but oral claim, which was outweighed by the document proof – the title deed – that Madiba possessed.
“The application does not make sense at all. There is no factual basis for it and the court should dismiss it. To make matters worse, there is a delay of 17 years,” said Maleka.
He added that Madikizela-Mandela’s claim that she acquired the property as customary wife would have to be determined in terms of which system of law with regard to customary or civil marriage prevailed.
That Madiba did not claim lobola from the Madikizela family, and therefore customarily they were still married, was baseless, said Maleka. He went on to argue that the land in question was donated to Madiba in 1995 and that the applicant should have challenged it back then, as it was a matter of public record.
The articulate Maleka mesmerised the packed courtroom D, often looking at the audience, which included Eastern Cape Judge President Themba Sangoni and Advocate George Bizos, executors of Mandela’s will and other members of the public.
He said Mandela had spent a fortune developing the property and would not have done so if it had not been his. Madiba spent R54 million of his own money developing the Qunu property, without any contribution from Madikizela-Mandela.
Maleka also questioned the timing of the claim, done after the passing of the elderly statesman, who died in December 2013 following a long illness.
“Mr Mandela is not here to give his version, unlike the applicant. Besides, she has not shown factual grounds or legal basis for her claim. Madikizela-Mandela’s application should be rejected with costs,” concluded Maleka.
Meanwhile, Advocate Viwe Notshe SC, who represented the state, drew some criticism from Pillay, one of Madikizela-Mandela’s lawyers, when he said the applicant was someone who was clutching at straws and punching above her weight.
“That she waited for this long is an undue delay. If this were a boxing match, I would say she is punching way above her weight,” he said.
Pillay later told the court she took exception to this assertion. “I take offence in that statement; my client is a respected member of the community.”
Judgment has been reserved.
Should a civil or customary marriage take precedence in this landmark case?
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