Nelson Mandela's family are embroiled in a fresh legal battle over his estate, says a Sunday Times report. Zenani and Zindzi Mandela are heading to the Constitutional Court to challenge their father's decision to leave the family home in Qunu under the custodianship of the Nelson Rolihlahla Mandela Family Trust.

Winnie Madikizela-Mandela's daughters are mounting the challenge – despite her similar application having failed in the High Court and the SCA. They believe there is a prospect of the top court arriving at a different outcome with a precedent-setting judgment ‘on the protection of the rights of women under customary law’.

The two were appointed executors of their mother's estate in April and this is the first time that they have become directly involved in the legal matter she initiated in 2014.

In their application for leave to appeal to the Constitutional Court, the daughters insist the Qunu property should be taken away from their father's wife, Graça Machel, also an executor of Mandela's estate. They argue that under customary law, their mother had rights over the Qunu property, which should be transferred to them as children born from the customary-law marriage between their parents. According to the Sunday Times report, their lawyer, Mvuzo Notyesi, commented: ‘The principal issue in the whole case, according to Mama Winnie herself and now Zenani and Zindzi, is to obtain a legal, definitive position on the rights of women over properties that are acquired under tribal law. When people divorce, the focus is usually on urban property and the 50/50 share of such properties, but with rural property, a man automatically assumes ownership, which is against the principle of equality and equal access to land and property.’

The bid has been opposed. The Sunday Times report notes Advocate George Bizos SC, one of the executors of his estate, is opposing the bid. In an affidavit, Bizos argues that there are no prospects of success in this matter because there are no constitutional issues to raise. Bizos also insists that the customary marriage between Mandela and Madikizela-Mandela was dissolved ‘factually and legally’ by a court of law. ‘The applicants' claim that customary marriage was never dissolved is premised on the discredited idea that lobola was not returned. Expert opinion submitted before the High Court established that whether or not lobola is to be returned is the choice of the person who paid the lobola, in this case Mandela. The crucial question to determine the dissolution of a customary marriage is whether it is clear from the conduct of the parties that they no longer intended to be bound by marital bonds,’ Bizos said in the court papers.

First Sunday Times report