A note on Mandela v Executors, Estate Nelson Mandela 2018 (4) SA 86 (SCA) and the Conundrum around the Customary Marriage between Nelson and Winnie Mandela

• Author: Sipho Nkosi
• DOI: 10.10520/EJC-1a9596ac0b
• Published date: 03 December 2019
• Date: 03 December 2019
• Record Number: sapr1_v34_n2_a4
• Pages: 1-12

Case Note

Southern African Public Law

https://doi.org/10.25159/2522-6800/4027

https://upjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online)

Volume 34 | Number 2 | 2019 | #4027 | 12 pages

© Unisa Press 2019

A Note on Mandela v Executors, Estate Nelson Mandela

2018 (4) SA 86 (SCA) and the Conundrum around the

Customary Marriage between Nelson and Winnie

Mandela

Sipho Nkosi

Lecturer, University of Johannesburg

Email: snkosi@uj.ac.za

Abstract

The note is about the appeal lodged by the late Mrs Winnie Madikizela-Mandela

to the SCA against the decision of the Eastern Cape High Court, Mthatha,

dismissing her application for review in 2014. In that application, she sought to

have reviewed the decision of the Minister of Land Affairs, to transfer the now

extended and renovated Qunu property to Mr Mandela and to register it in his

name. Because her application was out of time, she also applied for condonation

of her delay in making the application. The court a quo dismissed both

applications with costs, holding that there had been an undue delay on her part.

Mrs Mandela then approached the Supreme Court of Appeal, for special leave

to appeal the decision of the court a quo. Two questions fell for decision by the

SCA: whether there was an unreasonable and undue delay on Mrs Mandela’s

part in instituting review proceedings; and whether the order for costs was

appropriate in the circumstances of the case. The SCA held that there was indeed

an unreasonable delay (of seventeen years). Shongwe AP (with Swain, Mathopo

JJA, Mokgothloa and Rodgers AJJA concurring) held that the fact that there had

been an undue delay does not necessarily mean that an order for costs should,

of necessity follow, particularly where, as in this case, the other litigant is the

state. It is the writer’s view that two other ancillary points needed to be raised

by counsel and pronounced on by the Court: (a) the lawfulness and regularity

of the transfer of the Qunu property to Mr Mandela; and (b) Mrs Mandela’s

status as a customary-law widow—in relation to Mr Mandela.

Keywords: transfer of property; Mandela; review; costs; customary law and marriage