According to reports, Nelson Mandela left Winnie Mandela ZERO in his last will and testament, instead leaving everything to his children and third wife, Graca Marchel. It is for this reason that Winnie has brought a challenge to the will (even though her lawyers have taken pains to point out they are not contesting the will) to lay claim to two pieces of real estate which she alleges were purchased during their marriage. The main point of contention seems to be a farm in Qunu, South Africa, which Mr Mandela left to the family but which Ms Mandela claims should go to her two girls, based on customary tribal law:
In his will Mandela wrote: “The Qunu property should be used by my family in perpetuity in order to preserve the unity of the Mandela family.”
The Daily Dispatch was given exclusive sight of the letter addressed to deputy judge president Dikgang Moseneke two weeks ago. Moseneke is one of the estate’s co-executors.
Dated July 18 – Madiba’s birthday – and written by Madikizela-Mandela’s Mthatha-based lawyers, it states that the property in Qunu was first obtained while the two were still married and that according to AbaThembu custom, the house belongs to Madikizela-Mandela and her descendants.
Lawyer Mvuyo Notyesi wrote that the children born out of Mandela’s three marriages were entitled to the common homes that each of the wives is entitled to.
“This position becomes applicable irrespective of whether the wife was divorced or not,” Notyesi wrote in the letter.
The claim includes the Qunu farm, which the couple owned while they were married. MORE
Is this legally defensible? Can Winnie Mandela’s lawyers win such as case? it seems this is some type of quasi “community property” type of argument but Winnie had been divorced for years prior to the death of her husband who was legally remarried at the time of his death. So obviously, the two were not in community anymore. The time for her to have claimed the Qunu property, seems to me, would have had to have been at the time of their divorce – unless he died while they were in the midst of the divorce process. But this is not the case here. So her claims are highly unusual but maybe Under their customary tribal traditions she could make out a claim. This confluence of divorce, estate and customary tribal law is obviously beyond my area of expertise. However I read this from another media source:
But according to royal spokesman Daludumo Mtirara, Ms Madikizela-Mandela has no claim to Mandela’s estate.
“Because of the fact that the site (where the rural home is located) was only dedicated to Nkosi Dalibhunga (Mandela) in person as the head of the Mandela house, divorce marked the end of Nkosikazi Winnie Madikizela-Mandela as a member of the Mandela house,” Mr Mtirara said.
He said that after a divorce, a former wife can claim a stake that belongs to their former husband in the name of their children, a son in particular and not daughters and grandchildren from their daughters.
“Her (Ms Madikizela-Mandela’s) current situation does not allow her to claim in the name of her son who should be the heir in her former house. Daughters belong to their in-laws and those that are unmarried would be allowed to stay and practice our culture including their children, if so required. Our custom requires the heir to be identified when one lodges such claims because the future head of that house must be confirmed beforehand and be validated,” Mr Mtirara.
“It would be appropriate if Nkosikazi Winnie Madikizela-Mandela thought of approaching the elders before circulating her interest in the media. She would be properly informed of the custom of abaThembu”. MORE
So it seems there is a huge dispute about the interpretation of tribal customary law in these circumstances. It seems the Qunu homestead was “dedicated” to Nelson Mandela while he was married to Winnie Mandela but even so, she would have only been able to stake a post-divorce claim in the name of her SON but unfortunately for her, she only had daughters.
On the other hand, Winnie does have support in high places. King Dalinyebo (this person is ostensibly the head of their tribe) has been quoted as saying that the divorce between Winnie and Nelson Mandela was null and void given that under their customary traditions, the man cannot initiate the divorce. If this is true, then this “community property” argument could find some wings but his position is creating major havoc in their community because not everyone agrees with him or believes that he has the right motives in raising these allegations. The following is an excerpt of his position on the matter:
King Dalinyebo said last week that in a case of divorce custom dictates that when a man is the one who initiates the divorce, the divorce is null and void. This is because such divorces usually happen because of matrimonial problems and not problems that separate the right and status of the woman as a wife.
“Mama Winnie legally contested the divorce to Tata, which means she was not the instigator of the divorce. The fact that she is still with the family is because, customarily, it is her right,” King Dalinyebo said.
Mr Mtirara said King Dalindyebo had created confusion by stating that Ms Madikizela-Mandela was entitled to Mandela’s home.
“We strongly condemn the confusion that Zwelibanzi Buyelekhaya Dalindyebo is creating because according to our custom Nkosi Dalibhunga’s former wife has no claim over his estate. We are quite aware that Zwelibanzi Buyelekhaya Dalindyebo has a potential of dividing families and we would like to warn him that his family is quite clear about his unreasonable disrupting tactics,” he said. MORE
It certainly sounds like Nelson Mandela completely disinherited his wife Winnie Mandela. This in and of itself is an issue because whatever transpired when he was in prison (and I’ve read the reports about the human rights abuses, the adultery and the allégations of fraud while she was fighting the vicious apartheid in an attempt to free South Africa), she was a tireless advocate for her husband. She did not let the world forget him. I only knew of him because of her. I remember as a young girl seeing her on TV or in Newspapers raising her fist into the air and chanting “Mandela!” It brings tears to my eyes even now. So my feelings about this situation are not based in logic. They are based on emotions which is never the greatest way to analyze a situation. Nevertheless, I think that equity demands that Winnie be treated a little bit better than she has been treated in this circumstance. Whatever the technicalities of tribal, estate and divorce law may be in South Africa, it really isn’t asking TOO MUCH that Winnie and her two daughters by Nelson Mandela get the Qunu farm. Her divorce settlement from Mandela was never disclosed although initially she asked for $5 million (half of his networth at the time but since she failed to show up to the court hearing, this was dismissed.) Still, it really is not too much to just give her the Qunu home.