Johannesburg - Customary and common law favours the greater Mandela family in their legal battle with Mandla Mandela, a constitutional law expert said on Wednesday.
University of SA African renaissance Prof Shadrack Gutto said customary law demanded that Nelson Mandela's grandson Mandla Mandela, who is also the chief of Mvezo in the Eastern Cape, follow due process before exhuming remains.
He did not follow the correct approach when moving the graves from Qunu to Mvezo in 2011.
“Mandla Mandela is the chief of Mvezo and not of Qunu,” Gutto said.
“Therefore, if he did not go through the process of consulting the chief in Qunu before exhuming those bodies in another chieftainship... that was wrong in customary law.”
The fact that the critically ill Nelson Mandela had reportedly already voiced his preference to be buried alongside his children in Qunu was another factor that counted against the Mvezo chief.
“The wishes of Tata Nelson Mandela ought to prevail in these circumstances and (the) actions taken by Mandla undermine that,” Gutto said.
Mandla Mandela also transgressed common law in disturbing the graves in Qunu.
“Graveyards are protected under law and therefore if you go and exhume the bodies without having the proper permission to do so, that application should have been taken, for legal reasons, to court. He did not do that and that is again a problem,” Gutto said.
The Eastern Cape High Court ruled against Mandla Mandela on Wednesday, after he tried to have a court order compelling him to return the remains to Qunu overturned.
The chief then launched another application to rescind the court order, which had yet to be heard.
His spokesman said Mandla Mandela would hold a news briefing on the matter on Thursday to respond to “allegations and dirt thrown in his direction”.
The sheriff of the court was due to exhume the bodies at Mandla Mandela's Mvezo home at 3pm on Wednesday and take them back to Qunu for reburial. - Sapa