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

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