By Lehlohonolo Lehana.
The Supreme Court of Appeal (SCA) has set aside the Gauteng High Court in Pretoria judgment that found that the Zambian government is entitled to repatriate the remains of the late former President Edgar Lungu.
Lungu passed away on 5 June 2025 at a hospital in Pretoria, South Africa.
In its judgment, the Gauteng High Court held that there were no reasonable prospects of success for the appeal.
It also rejected the family’s contention that Zambian law had no extraterritorial effect and therefore should not apply in South Africa.
The court further dismissed claims that Lungu had lost his benefits, highlighting that he still holds the status of a former president and is, therefore, entitled to burial benefits funded by the state upon his death.
It added that the agreement between the Zambian government and the family to hold a state funeral remained binding, despite assertions that Lungu had instructed that incumbent President Hakainde Hichilema should neither speak at nor attend his funeral.
Delivering judgment, Justice Raylene Keightley ruled that South African constitutional protections for dignity, privacy and family autonomy, together with common law principles recognising the rights of next of kin, supported the family’s position.
“In the absence of proof of such an agreement, the family’s constitutional rights to dignity, privacy, and family autonomy prevail.
“The appeal is upheld with costs, including the costs of two counsel where so employed. The order of the high court is set aside and is replaced by the following order: The application is dismissed with costs, including those of two counsel where so employed,” Keightley ruled.
Following the ruling, the Zambian government says although it disagrees with the SCA ruling, it will no longer pursue the matter any further.
The matter was all supposed to have been settled in June, when the family initially agreed that there could be a state funeral in Zambia. But the plans were scuppered over a dispute about what role Hichilema would play.
Lungu’s family said one of his dying wishes was that Hichilema should not go anywhere near his body.
The key to understanding the animosity was the more than 100 days that Hichilema, opposition leader at the time, spent in detention in 2017, awaiting trial on treason charges.
He was accused of endangering the life of then-President Lungu after his motorcade allegedly refused to give way to the one transporting the head of state.
The charges were only dropped after intervention of the secretary general of the Commonwealth. This was one of several times that Hichilema was arrested while he was in the opposition.