Mandela vs Mandela

03 July 2013 - 03:10 By SIYA BOYA and LOYISO MPALATSHANE
Nelson's Mandela's daughter Makaziwe and grandchildren Ndaba and Ndileka in the Mthatha High Court yesterday where they and other family are waging a battle against grandson Mandla
Nelson's Mandela's daughter Makaziwe and grandchildren Ndaba and Ndileka in the Mthatha High Court yesterday where they and other family are waging a battle against grandson Mandla

Nelson Mandela's eldest daughter has declared all-out war against his grandson Mandla, laying criminal charges against him yesterday for exhuming the graves of three Mandela children.

Makaziwe Mandela took on her headstrong nephew by filing a complaint at an Eastern Cape police station of illegal tampering with graves.

Makaziwe and 16 other relatives, including Mandela's wife, Graça Machel, are fighting Mandla in the Mthatha High Court over the 2011 removal of the remains of Mandela's children Makgatho, Thembekile and the first Makaziwe from Qunu to Mvezo village.

Mthatha police spokesman Lieutenant-Colonel Mzukizi Fatyela confirmed the charges were opened at the Bityi police station.

"Early today the family's lawyer indicated that a case would be opened and it has been. I am not sure if Mandla is aware of this yet," Fatyela said.

He would not confirm who had filed the complaint, but The Times has learnt that the living Makaziwe was the complainant.

The criminal case has exposed further cracks in the family as Mandela spends his 26th day in hospital today.

On Friday, the 16 family members obtained an interim court order stating that Mandla was to return the remains to Qunu as a matter of urgency.

In papers presented to Judge Lusindiso Pakade, the family submitted that Mandla had failed to consult them or to get written permission from the Department of Health.

Health and environmental officers should also be present when remains are exhumed and a funeral parlour needs to be appointed. The provincial health MEC is also required to give consent.

Eastern Cape health spokesman Sizwe Kupelo yesterday said that, according to the Exhumation Act of 2004, the chief of a village had to give written authorisation and say that there were no objections to the exhumation.

Permission should also be obtained from the chief where the reburial is planned.

Kupelo said the family concerned must then submit a detailed request to the department, including the name of the deceased, cause of death and the reason for exhuming the remains.

"We are investigating the circumstances under which the authorisation was granted and whether the stipulations of the Act were observed and followed," said Kupelo.

Mandla could not be reached for comment on the criminal charges.

Yesterday, his legal team tried to poke holes in the case presented by Makaziwe and the other family on Friday.

Advocate Phillip Zilwa berated the process followed to bring the application and said the order had been wrongly granted.

His client had not been properly served with the papers and the application did not bear the applicants' signatures or residential addresses, Zilwa told the Mthatha High Court.

A deputy sheriff was criticised for having left the court order hanging on the gates to Mandla's home in Mvezo when there was no one to receive it.

Mandla had been given "too short" a time to respond and had received the application after "the horse had bolted and the stable door was closed", Zilwa argued.

He asked Judge Pakade to revoke the order or, he said, the defence team would bring an application to rescind it.

But legal counsel for the family, represented by advocate David Smith, said Mandla had been afforded the opportunity to respond as the order was granted only on Friday afternoon.

Smith said the urgent application was based on "substantial and real grounds" with the intention for the bodies to be exhumed the day after the court's final decision.

The Sunday Times reported this week that an affidavit detailing the state of Mandela's health had been attached to the application.

The paper quoted an Eastern Cape local chief as saying: "Mandela's soul is not at peace. The ancestors will be appeased only once the remains of the Mandela family are reburied in Qunu. Only then will Tata be released.

"Mandla himself also has to ask the ancestors for forgiveness. He has to go to the grave site and plead with them. This is what is holding Tata back," the chief said.

Smith argued that parts of the arguments made in Mandla's response were "irrelevant, vexatious and scandalous".

One of these was the date given for Mandla to comply with the order, from July 29 instead of June 29, which was an error.

Smith said Eastern Cape health MEC Sicelo Gqobana was cited in the application because the Exhumation Act had been contravened when the bodies were exhumed without the permission of the authorities.

Judgment has been reserved until today.

Several members of the Mandela family attended yesterday's court proceedings, but Mandla was not present. - Additional reporting by Chandré Prince