Nomzamo Winifred Zanyiwe Madikizela Mandela v The Executors Estate Late Nelson Rolihlahla Mandela and Others

The appellant (Mrs Winnie Madikizela Mandela) and the late Mr Nelson Mandela married in terms of customary law in 1958, and subsequently concluded a civil marriage out of community of property on 14 June 1958. They divorced by final decree on 19 March 1996. On 16 November 1997, the Minister of Land Affairs donated property in Qunu (approximately 96.9 hectares) to Mr Mandela. The property was registered in his name on 24 February 1998. Mr Mandela built a home on the property between 1993-1995 and later a larger mansion after the divorce. He passed away on 5 December 2013, bequeathing the property to the Nelson Rolihlahla Mandela Family Trust. The appellant only instituted review proceedings on 14 October 2014 to challenge the Minister's decision to donate the property to Mr Mandela, claiming she had customary law rights to the property which had been allocated to her by tribal leaders around 1989-1990, and that her customary marriage remained extant despite the civil divorce.

• Whether the appellant unreasonably delayed in launching the review application
• Whether the unreasonable delay should be condoned
• Whether the Minister's decision to donate the property complied with the Upgrading of Land Tenure Rights Act 112 of 1991 and the Interim Protection of Informal Land Rights Act 31 of 1996
• Whether the appellant's customary marriage to Mr Mandela survived the civil divorce decree
• Whether the appellant had customary law rights to the property
• Whether the costs order against the Minister was appropriate in light of constitutional litigation principles in Biowatch

1. The appeal against the costs order in favor of the third respondent (Minister) was upheld. 2. The costs order against the appellant in favor of the Minister was set aside and substituted with an order that each party bears its own costs. 3. The appeal against the dismissal of the review application was dismissed. 4. The appellant was ordered to pay the first respondent's (executors') costs including costs of two counsel.

Where an applicant has unreasonably delayed in instituting common law review proceedings, and such delay creates severe potential for prejudice to respondents (particularly where a key party has died and cannot present their version of events), a court may properly refuse to condone the delay even where the applicant may have prospects of success on the merits. Potential prejudice must be assessed by comparing the present position with what it would have been had proceedings been instituted within a reasonable time. In constitutional litigation involving challenges to state action based on legality and constitutional rights, the Biowatch principle applies and unsuccessful litigants should not ordinarily be ordered to pay costs unless the litigation was frivolous, vexatious or manifestly inappropriate. A finding of unreasonable delay alone does not render litigation frivolous or vexatious for purposes of departing from Biowatch.

The court noted that although customary law marriages were not recognized in South African law until 1998, section 2 of the Recognition of Customary Marriages Act 120 of 1998 provides retrospective recognition. The court observed that even if the appellant succeeded in her customary law claim, she would likely only be entitled to the small portion originally allotted to her (approximately 9 hectares), not the entire extended property of 96.9 hectares donated by the Minister in 1997. The court also noted that had the appellant's claim been confined to the smaller original portion rather than conflated with the larger donated property, the case might have been adjudicated differently. The court commented on Mr Mandela's own statement in divorce proceedings that he knew of no custom or tradition dealing with dissolution of civil marriages by courts, suggesting he regarded the divorce decree as determinative of any marriage-based rights.

This case clarifies the approach to unreasonable delay in common law review proceedings (pre-PAJA), emphasizing that potential for severe prejudice is a critical consideration in refusing condonation of delay. It demonstrates that the death of a key party to a dispute can constitute significant prejudice justifying refusal of condonation, particularly where that party's version of events is essential to the case. The judgment also applies the Biowatch principle on costs in constitutional litigation, holding that litigants asserting constitutional rights (including legality and property rights) in good faith should not be deterred by costs orders, even where unsuccessful due to procedural grounds like delay. However, Biowatch does not apply to disputes between private parties. The case also touches on complex issues regarding the interaction between customary law marriages and civil marriages, and the effect of civil divorce on customary marriages, though these were not definitively resolved.