Winnie and Mandela

Winnie left empty-handed

March 22, 1996

Philippa Garson

LAWYERS are baffled at how Winnie Madikizela- Mandela's legal team handled the divorce, which ended so suddenly, with her defeated and empty-handed.

A successful challenge to the divorce judgement in the Constitutional Court is seen as unlikely. Madikizela-Mandela must now rely on the "goodness of heart" of President Nelson Mandela, who has offered her an ex gratia settlement and waived legal costs she was ordered to pay.

He has already paid her at least R3-million and two of his daughters R1,3-million.

Lawyers said it was "unheard of" to request a postponement for reconciliation purposes. Details like these and the question of his assets would be discussed in pre-trial conferences. Madikizela-Mandela dodged confronting the issue until it came to court. But when it did, she and her legal team were entirely unprepared for it.

While weeks of court disclosures on more intimate details of the marriage would have ground the country to a voyeuristic standstill, the theoretical possibility exists that elements potentially harmful to the president's image could have emerged in court.

Dismissing her advocate Ismail Semenya led Judge Frikkie Eloff to request her to defend herself. Unable or unwilling to do this, she did not arrive in court the following day and so lost the opportunity to fight for a portion of his assets. The judge could reopen the settlement hearing if she furnishes very good reasons for her absence in court within the next two weeks.

But legal sources say had she arrived in court that day and asked for a postponement until she acquired a new legal team, she would have got it.

Having been married to the president for 38 years she stood to gain as much as a third of his estate. Or, had she simply settled out of court her settlement could have been "handsome".

Madikizela-Mandela has since denied firing Semenya, a Natal University graduate and member of a panel of legal experts to the Constituent Assembly. Semenya served on the Skweyiya Commission into corruption in former Bophuthatswana and co-authored a book on the draft Constitution.

© Weekly Mail & Guardian

Editorial:
Presidential privacy

March 22, 1996

With regard to the matter of Mandela vs. Mandela, there is a degree of angst being suffered by some of our colleagues in the press: anxious hand-wringing over the question as to whether the media had the "right" to stick its collective nose into the matrimonial affairs of the president. Press freedom is very well, goes the refrain, but what about the right to privacy?

Clearly the rights to privacy and freedom of information, like all competing rights, require a balance. But the Mandela divorce case demonstrates precisely why, in the case of public figures - and, in particular, politicians - the balance needs be weighted heavily in favour of freedom of information.

Most obviously the case was a test of the character of two public representatives. It might be argued that they were not in need of testing - that the relative merits of the couple were already well-known - but that goes to the particular and not the principle. If the re-election of Winnie Madizikela- Mandela (as she now wants to be known) to head the African National Congress Women's League is any indication, there are, anyway, many in this country who need their noses rubbed in the obvious.

Even if Madizikela-Mandela were not a public representative in her own right she was, after all, Caesar's wife; having failed to show herself beyond reproach, it would have been fitting that the public, as well as the courts and her husband, should have had an opportunity to lay judgement upon her.

As an added bonus the public ventilation of the case also provided the nation with a lesson in civics. Madizikela-Mandela's attempt to introduce Kaiser Matanzima into the proceedings raised the relationship between tribal custom and the laws of a modern, industrial state. The president's response was a salutary one: tradition is all very well, but life must go on. Her attempt to introduce Paul Erasmus and "Stratcom" raised a familiar refrain: that all our difficulties are to be blamed on apartheid. The president put it in perspective: apartheid has much to account for, but we can still be authors of our own woes.

The president may consider the divorce one of the low points in his private life. We would assure him that it was one of his most noble performances in public life. We have much to be thankful for in Nelson Mandela. To the litany of national indebtedness we can now add a fine precedent where press freedom is concerned.

© Weekly Mail & Guardian

The president's masterful performance

March 22, 1996

David Beresford

In the final adjournment on Tuesday in the case of Mandela vs. Mandela - waiting for the Judge President of the Transvaal, Judge Frikkie Eloff, to deliver the by-now inevitable decree of divorce - the state president sat slumped in his chair, gazing into the middle distance.

Gone was his bonhomie with the press and his old-world gallantry with his beautiful junior counsel.

In the rare glimpse of misery on his unguarded face, it was possible to read the story of a family life gone wrong: the brutal break-up with his first wife; the loss of a beloved son in a car crash; the turbulent life of a fatherless Zinzi ... and now Winnie.

"I have been fairly successful in putting on a mask behind which I have pined for the family, alone," he once told Winnie in a letter from Robben Island.

At 3.15pm on Tuesday the stony-faced mask of dignity was back on. But as Judge Eloff pronounced the decree, one could sense that behind the mask he was mourning another loss, another defeat.

And yet, curiously, the divorce action represented yet another triumph in the life of Nelson Mandela. Because, behind the salacious detail of bedroom snubs, adultery and Winnie's extravagance, the court heard a testament from the president which was reminiscent of the glorious "speech from the dock" at Rivonia.

Ishmael Semenya, counsel for Winnie Madikizela- Mandela (as she now wishes to be known) faced an almost impossible task in his conduct of the defence and it was mirrored in the increasingly desperate smiles with which he met the president's rejoinders to his questions.

Semenya's task was to clear the way for two key witnesses underpinning the defence: the former security branch agent, Paul Erasmus, and Chief Kaiser Matanzima.

Erasmus was to give substance to that familiar refrain that apartheid was to blame - that dirty tricks operations by the top-secret police unit "Stratcom" had poisoned the well- spring of the marriage.

That established, Matanzima was to take the marital dispute out of the jurisdiction of the court into the realm of tribal "custom" in which the affairs of Thembu royalty were arbitrated and mediated by their peers.

Semenya battled to breach Mandela's implacable refusal to give ground on either count. "Winnie underwent gross persecution, brutal treatment by the police," conceded the president. But, he qualified: "There were many women in this country who suffered far more than she did," citing Albertina Sisulu as an example.

Madikizela-Mandela's counsel continued pressing the line of security police manipulation. "I have never been influenced by my enemies, by those ... who sent me to jail for 27 years," the president flared with exasperation.

Finally, he resorted to threat. Declaring there were "even more serious reasons why I left home", he said: "I appeal to you not to put any questions which might compel me to reveal facts which might damage her image and bring pain to my children and grandchildren."

Semenya had even more difficulty with Matanzima, Mandela bridling at every mention of the former homeland leader's name. Denouncing the chief as a "collaborator" and a "liar", Mandela said: "Nothing agitates me more than the attempt to bring Matanzima into these proceedings."

The efforts by the defence to establish the superiority of tribal custom over civil law earned the court a lecture on the subject. "I respect custom. But I am not a tribalist. I fought as an African nationalist and I have no commitment to the custom of any particular tribe," he told Judge Eloff.

As for the right of Tembu chiefs to interfere in a civil divorce suit: "This particular kind of custom I am not even aware of."

It was hopeless and Semenya knew it. As he bowed his way out of the cross-examination -- - "no further questions, my lord" - the case was already over. He had failed to challenge the adultery allegation and failed to establish the faintest prospect of reconciliation. The president had shut him out.

As Judge Eloff finished pronouncing the final decree and rose, Mandela the litigant stood with the rest of the courtroom in respect for the bench. Then Mandela, the president, barked an order to his aides who scurried across the courtroom to summon Semenya to his presence.

The diminutive lawyer hurried, wide-eyed to him. Mandela solemnly shook his hand and congratulated him on his conduct of the defence. The mask was in place. It was the closing scene of a truly presidential performance.

© Weekly Mail & Guardian

Mandela versus Mandela

March 22, 1996

Despite a law forbidding in-depth coverage of divorce cases, the media scrutinised the Mandela case, writes Philippa Garson

THE flagrant contravention by the media this week of a section of the Divorce Act has raised questions about whether that aspect of the legislation is unconstitutional.

The media had a "field-week" reporting on the ins and outs of the emotional court room drama of one of the world's most high-profile divorce cases - that between 77-year-old President Nelson Mandela and his former wife, Winnie Madikizela-Mandela.

This, despite the fact that the Divorce Act limits reporting on divorce to the names of the parties, the fact of the divorce action and the judgement.

Mandela, his legal team or Justice Frikkie Eloff could by rights have objected to the publication of details of the divorce and the transgressors (the media at large) would face a maximum prison sentence of one year and/or a fine of R1 000.

A member of Mandela's legal team said: "I don't know what our client's attitude is. We did not discuss it and no one from our legal side expressed any objection. The publicity did not do him any harm. It would have done him more harm if the trial was held in secret."

He added that the team would not want to enforce a ban whose constitutionality was up for question and that the "paltry" penalty for contravention would not act as a deterrent to the media in such a high-profile case.

The ban was a good one in certain instances, but should allow for discretion in cases like the Mandela divorce which contained elements of public interest, he said.

Most would agree that Mandela's almost indestructible image was in no way damaged by revelations of his private life. In fact, if possible, it was even enhanced, evoking deep sympathy for him from the public. But things could have been different if, for example, Madikizela-Mandela had given evidence and made damaging allegations against him. This was an unlikely but not impossible scenario given that she contested the divorce.

According to lawyers, this is the first time such a flagrant contravention has been made since the Act was amended in 1979.

The details of the divorce between high-flying socialites Philip Tucker and Anneline Kriel were reported only because they emerged in a criminal trial arising from dagga charges against the two.

The issue highlights the tension between the public's right to know and an individual's right to privacy. Do public figures forgo all rights to privacy?

Leading divorce lawyer Billy Gundlefinger said he was "astounded by the flagrant disregard of the law by the media. Just because he's the president, why should he have his personal life paraded?"

Constitutional expert Dennis Davis said it could be argued that the provision was unconstitutional in that it infringed on the right to freedom of expression.

However he said he found it "unbelievable" that such a provision, no matter how controversial, was so brazenly breached. "Being president gives you a reduced right to privacy but it can't possibly destroy your privacy completely. He might be the most famous person in the world but he is not public property."

Raymond Louw, chairman of the Freedom of Expression Institute (FXI), was part of a Newspaper Press Union delegation to the former government opposing the amendment when it was passed, believing that it was introduced to hide potentially important information from the public.

"I'm all in favour of divorce evidence being available to the public on the grounds that the public has a right to know," said Louw.

He continued to say that "double standards" were implicit if people were allowed to listen to court proceedings but media were prevented from reporting them.

"I feel sympathy for the President that his private life has to be bundled out in public in this way, but this is the price one pays for democracy."

Director of the FXI Jeanette Minnie said the public had a right to know about the divorce partly because "the country has felt the ramifications of the tensions between the two. It has been part of the political scenario on South Africa over the past few years."

The right to privacy versus the public's right to know "are not in contradiction so much as that they encroach on each other. The constitutional court must balance them." Minnie said it took 10 years for a country to establish new constitutional law. The organisation is involved in a research project identifying bits and pieces of existing legislation that places curbs on press freedom.

© Weekly Mail & Guardian

Winnie accuses Mandela at TRC October 23, 1997

Wally Mbhele

Winnie Madikizela-Mandela dropp-ed a bombshell at the truth commission when she accused President Nelson Mandela of being part of a campaign to vilify her name.

She said Mandela had instructed National Police Commissioner George Fivaz to "dig up all the dirt against her" and wanted to use the information against her in their 1996 divorce hearing.

The Mail & Guardian understands she made this stunning allegation last Monday at the closed hearing held to determine whether she was guilty of human rights violations.

The claim against the president was made as truth commissioners fired questions at Madikizela-Mandela about her knowledge of Dr Abu-Baker Asvat's killing. Asvat was gunned down in his Soweto surgery in 1989. One of the killers is now seeking amnesty for the murder and has claimed he was hired by the president's former wife to eliminate the doctor.

Sources close to the commission told the M&G it was Madikizela-Mandela's view that Mandela wanted to use information obtained from the Asvat murder investigation against her during her divorce proceedings.

She also blamed both the African National Congress and the former National Party government's propaganda unit, Stratcom, for the negative publicity she has been receiving.

At the hearing, Madikizela-Mandela said she was of the view that certain ANC leaders were behind the truth commission's probe into alleged human rights abuses by her former bodyguard, the Mandela United Football Team. She sees this investigation as part of a wider political plot to thwart her chances of becoming the party's and the country's next deputy presidents.

"When the commission treats me like a leper and its chairperson hugs our former oppressors, then I worry about what type of reconciliation we are fostering," she said in a statement last week. Truth commission insiders said her statement echoed what she had told the commissioners during the closed inquiry. She reminded the commission that she was part of the parliamentary process which legislated the Promotion of National Unity and Reconciliation Act which gave birth to the commission. It was in that context that she lashed out at the commission for reneging on its original mandate of pursuing apartheid oppressors rather than the victims of human rights abuse.

Insiders also said because of Madikizela- Mandela's suspicions of the ANC, her lawyers had instructed the commission not to communicate directly with the ANC's legal team.

However, ANC legal expert, Mpumalanga Premier Mathews Phosa, was part of the team assisting Madikizela-Mandela, and said she has not barred the ANC from helping her. It was, he said, not his view that the ANC has been shunned by Madikizela-Mandela, but that she prefers to use her own lawyers.

He said he had only accompanied Madikizela- Mandela to the commission's meetings because he had to ensure that the interests of the ANC were looked after. "As the ANC," said Phosa, "we only deal with political presentations ... It was a difficult moment."

Sources close to the commission said it will not call Mandela to answer the allegations levelled against him by his former wife.

However, some officials of the former Mass Democratic Movement (MDM) and those who constituted the Mandela Crisis Committee - formed in late 1988 to look after Winnie Mandela's affairs - will certainly be called to testify at the open hearing on November 24.

It is understood the commission has already held talks with Deputy President Thabo Mbeki's adviser, the Reverend Frank Chikane, who was one of the members of the crisis committee.

MDM leaders will be questioned on their correspondence with the exiled ANC leadership in Lusaka, as well as a statement they made in February 1989 denouncing Winnie Mandela.

The statement followed reports that her footclub club had abducted four youths, including Stompie Seipei, from a church manse. It expressed "outrage at Mrs Mandela's obvious complicity in the recent abductions ... Had Stompie and his colleagues not been abducted by Mrs Mandela's football team, he would have been alive today."

© Weekly Mail & Guardian

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