Winnie’s Qunu claim is perfectly valid

2015-03-22 15:00

In my opinion, Mama Winnie is pursuing her customary rights enshrined in the Constitution of this country. There is a general practice that spouses can celebrate a customary marriage and, on the same day or a short while later, have it solemnised in a civil registry office.

What has further reinforced the customary side of this marriage was the granting of the site (inxiwa) to Mama Winnie and Tata Omkhulu (Nelson Mandela) to stay together as husband and wife in a traditional community.

It is governed by indigenous customary practices that cannot be broken by the state’s donation of the site, including the power of the will.

It is well known that during apartheid, only civil ceremonies were deemed to be proper marriages. They had the power to supersede and invalidate the customary marriage that came into existence before “civilisation” entered most African minds.

This has prompted many “civilised” Africans to have it both ways without them understanding that the two laws cannot exist concurrently in a court of law.

If chapter 12 of our Constitution is fairly applied, it can’t be right that a high court can dissolve a marriage constituted under customary practices merely on the grounds of an irretrievable breakdown of that union.

One can argue that only the civil certification of the marriage can be dissolved by the court, but the other part that is related to custom has to be dealt with in terms of the applicable customary beliefs of the clan, in this case Amadlomo, and not a high court judge.

This was not done in dissolving Mama Winnie’s marriage to Tata and, until such time that this aspect of the marriage has been completed, she will remain in a customary marriage and recognised as a wife of the Amadlomo clan with full land rights (inxiwa lakhe nomyeni wakhe). When she went for the cleansing ceremony with Mama Graça Machel, she affirmed her customary rights.

In simple terms, if a marriage was two-phased from its origin, as in this case, the same processes that were practised in affirming the existence of this marriage must be equally applied when dissolving it.

Mama Winnie’s marriage existed before the establishment of the Customary Marriages Act 120 of 1998, which came into operation on November 15 2000, and this has created legal problems.

Customary marriages in existence before the commencement of section 7(1) of the act provide that the proprietary consequences of a customary marriage entered into before the commencement of the act will continue to be governed by customary law.

The question raised by many might be: Which customary law applies? The answer is that the customary laws applicable to the clan that uses them in concluding the customary marriage must apply.

Ngonyama is a prince in the abaThembu kingdom

Join the conversation!

24.com encourages commentary submitted via MyNews24. Contributions of 200 words or more will be considered for publication.

We reserve editorial discretion to decide what will be published.
Read our comments policy for guidelines on contributions.

24.com publishes all comments posted on articles provided that they adhere to our Comments Policy. Should you wish to report a comment for editorial review, please do so by clicking the 'Report Comment' button to the right of each comment.

Comment on this story
0 comments
Comments have been closed for this article.

Inside News24

 
/News

Book flights

Compare, Book, Fly

Traffic Alerts
Traffic
There are new stories on the homepage. Click here to see them.
 
English
Afrikaans
isiZulu

Hello 

Create Profile

Creating your profile will enable you to submit photos and stories to get published on News24.


Please provide a username for your profile page:

This username must be unique, cannot be edited and will be used in the URL to your profile page across the entire 24.com network.

Settings

Location Settings

News24 allows you to edit the display of certain components based on a location. If you wish to personalise the page based on your preferences, please select a location for each component and click "Submit" in order for the changes to take affect.




Facebook Sign-In

Hi News addict,

Join the News24 Community to be involved in breaking the news.

Log in with Facebook to comment and personalise news, weather and listings.