Winnie's Qunu homestead claim might have been diminished had Madiba been alive - SCA

Bloemfontein – The weight of the evidence of Winnie Madikizela-Mandela’s claim to former president Nelson Mandela's Qunu homestead might have been diminished had he been alive to give his version, the Supreme Court of Appeal (SCA) said on Friday.

Madikizela-Mandela approached the SCA to overturn a 2016 decision by the Eastern Cape High Court in Mthatha, which dismissed her application to acquire Mandela's home in Qunu.

The former president's ex-wife believed a decision taken by the Minister of Land Affairs on November 16, 1997, in which the land was donated to the former president, should be set aside.

She claims that the property was built on land allocated to her in 1989, and she has maintained that she only discovered in 2014 that the property was registered in Mandela's name.

'No acceptable evidence'

The court said Mandela allowed the property to be donated to him and registered in his name before disposing of it by will.

"Absent any dishonest and unworthy intentions to the late Mr Mandela, one is bound to conclude that there is some important part of the story which the court did not hear because the review was only instituted after Mandela’s death," the court papers read.

The "original modest dwelling" built on the property between 1993 and 1995 was constructed when the former president was separated from his then wife and they were "hardly talking".

"The mansion was erected after they were divorced and was used by himself and his new wife. The appellant must have been aware of such improvements and adopted a supine attitude towards her alleged claim.

"She provided no acceptable evidence that she contributed financially to the improvements on the property."

When Mandela died in December 2013, he was married to Graça Machel.

In his will‚ Mandela bequeathed the property to the Nelson Rolihlahla Mandela Family Trust for the benefit of the Mandela family‚ including his third wife Machel and her children.

The court agreed with the respondents – which included the Nelson Mandela Family Trust, the executors of his estate and the Minister of Land Affairs – that a reasonable person in Madikizela-Mandela's position "would have asserted a right to ownership of the property before the death of Mr Mandela".

"To wait until after his death is extremely prejudicial to his estate and heirs because his version of events is not available. Part of the prejudice lies in the very fact that, because the appellant’s claim was only asserted after Mr Mandela died, the evidence in her favour may now seem to be stronger than it would have been had Mr Mandela’s counter-version been before court."

It also considered that had Mandela been aware of Madikizela’s claim in good time, he "most probably would have devolved his estate differently".

'Property is rightfully hers'

The decision to dismiss the appeal was exclusively based on the "excessive undue delay, coupled with the potential for severe resultant prejudice" to the respondents, the court said.

"I am prepared to assume, without deciding, that on the evidence before the court, the appellant’s case on the merits has good prospects of success and that a meaningful result would be achieved by setting aside the decision of the minister.

"These assumed prospects of success are however not sufficient to swing the balance in her favour when it comes to the discretion as to whether to overlook the delay, when due regard is had to the potential for severe resultant prejudice if the decision of the minister is set aside."

Madikizela-Mandela's attorney, Mvuzo Notyesi, had previously said she "maintains that the property is rightfully hers", but the Royal House of Mandela has rejected Madikizela-Mandela's claim to the property.

According to Notyesi, AbaThembu custom dictated that the rights to the property should go to Madikizela-Mandela and her descendants, irrespective of whether the wife was divorced or not.

While the SCA dismissed the appeal regarding the review application, it upheld an appeal against the costs order granted by the Eastern Cape Local Division, Mthatha.