Johannesburg - Winnie Madikizela-Mandela’s bid to gain control of Nelson Mandela’s Qunu home was launched on his birthday.
However, this has been described as pure coincidence by her lawyer, Mvuzo Notyesi, who claimed on Tuesday they were not challenging Madiba’s estate even though they are prepared to go to court over the matter.
Notyesi is the author of the letter sent to the executors of Madiba’s will more than two weeks ago, on behalf of Madikizela-Mandela and her two adult daughters with Madiba - Zindzi and Zenani.
Notyesi said they were still awaiting a response from the executors and hoped for clarity soon as they were concerned about the welfare of the cows at Qunu.
“The next step will be determined by the outcome of the discussion; for now we can’t say what’s going to happen,” said Notyesi.
“We’ll avoid as much as we can going to court, but if we’re pushed, we will have to go.”
Notyesi insisted they were not challenging the will, but would not explain how otherwise to describe the claim.
He emphasised they were open to negotiations.
On Tuesday, advocate George Bizos SC, one of the estate’s executors, declined to comment, saying the executors had not yet met over the matter.
Madiba’s eldest grandchild, Nkosi Mandla Mandela, did not want to be drawn into the issue.
“It has nothing to do with him,” said his spokesman Freddy Pilusa.
The letter sent by Notyesi is dated July 18, which is Madiba’s birthday, now celebrated as Mandela Day, when people are urged to give 67 minutes of their time to helping others.
“I never even noticed that,” said Notyesi.
Madikizela-Mandela’s claim appears to be based on African customary law. She argues that she acquired the home for the couple in 1989 while he was in jail.
There is no clear mention in the letter of her claiming to be financially entitled to benefits; rather, she wants the Qunu property to be “nominally handed over” to their daughters to be “the joint custodians of the property, which shall devolve among their generations and generations in accordance with AbaThembu custom and tradition.”
The letter states that it is “only in this home that the children and grandchildren of Mrs Madikizela-Mandela can conduct their own customs and tradition”.
The letter claims the support of controversial AbaThembu King Buyelekhaya Dalindyebo; Qunu is in his area.
“We wish to record that this is by no means an attack on the will of the late Mr Nelson Mandela, and we confirm that none of our clients is contesting the will, but our clients are only asserting the traditional and customary rights on what may be contentious in future,” the letter reads.
Mandela’s will explicitly states that the Qunu property goes to a family trust, “for the benefit of the Mandela family and my third wife (Graça Machel) and her two children, Malengane Machel and Josina Machel. The Qunu property should be used by my family in perpetuity in order to preserve the unity of the Mandela family”.
Port Elizabeth attorney Nicholas Mitchell, a specialist in the administration of deceased estates, said he didn’t know the details, but that Madikizela-Mandela would have to have a clear argument for a claim.
“A contrary claim by her is hardly likely to be conducive to family unity,” he added.
Mitchell said that contesting a will meant impugning its validity or legality, possibly by arguing that Mandela was incapable of executing a valid will or was unduly influenced. If she was not formally contesting the will, then she would have to give some other reason, for example that she contributed financially to that asset or was entitled to maintenance.
Madikizela-Mandela appears to be basing her claim on African customary law.
“What the executor would then have to establish, and what is likely to be in dispute, is whether, in fact, African customary law does apply,” said Mitchell.
This might mean having to show that there was an agreement with Mandela that African customary law would apply, or possibly that this is appropriate because of the circumstances of acquiring the property.
“I can understand completely where she’s coming from, but whether she would have success in demonstrating that it must be dealt with in accordance with African customary law is another matter entirely,” he said.