Mandela's daughters take on dad's will in Qunu standoff

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 precedent-setting 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 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 Madikizela-Mandela 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 Madikizela-Mandela 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.