WeeklySA_AdminCLOSURE: South Africa’s Supreme Court of Appeal has ruled that the family of former Zambian President Edgar Lungu has the right to decide where he is buried, overturning an earlier order that his remains be returned to Zambia for a State funeral…
By Monk Nkomo
The constitutional rights of the family of the late Zambian President, Edgar Lungu to dignity, privacy and autonomy , could not be overridden by the interests asserted by the Zambian government.
This is according to the majority decision of the Supreme Court of Appeal which upheld the appeal by the family of the late President against an order of the Full Bench of the Gauteng High Court in Pretoria, which authorised the repatriation of the late President’s remains to Zambia for a State funeral and burial in August last year.
In their judgment delivered last week, the Supreme Court of Appeal – in a majority decision – ruled that the Zambian government had failed to establish a legal right to override the family’s decision regarding the burial of the late President and whether a binding agreement existed between the Lungu family and the government.
Lungu died in South Africa on June 5, 2025 while receiving medical treatment. It was his and the family’s wish that upon his death, he should be buried in this country.
The Zambian government, however, insisted that he be buried in his country so he can be given a State funeral and burial.
Since his death , both his family and the Zambian government had been embroiled in a bitter legal battle over the right to bury him with the Gauteng High Court ruling in favour of the government to have his remains repatriated to Zambia. The family then appealed the decision following a court interdict.
In their judgment, the SCA declared : ‘’The majority further held that in the absence of a clear legal basis, the constitutional rights of the family to dignity, privacy and family autonomy could not be overridden by the interests asserted by the Zambian government. The SCA also found that the legislation relied upon by the Zambian government did not confer a right to determine the burial arrangements of a former President against the wishes of the family.’’ Applying the Plascon – Evans rule, the majority of the SCA Judges accepted the family’s version that no final agreement had been reached for the State to bury the late President. .
The family opposed the Zambian government’s application, relying on the late President’s stated wishes and contending that no binding agreement had been reached with the authorities regarding the proposed funeral arrangements.
‘’The central issue before the SCA was whether the Zambian Government had established a legal right to override the family’s decision regarding the burial of the late President and whether a binding agreement existed between the parties’’.
The majority judgment held that the evidence relied upon by the Zambian Government reflected ongoing negotiations rather than a concluded agreement. A minority judgment concluded that the evidence demonstrated the existence of a binding agreement between the parties concerning the repatriation of the late President ‘s remains, the State funeral and the funeral programme where the current President, Hakainde Hichilema, was to preside over the state funeral.
In the minority’s view, the Zambian Government had implemented the agreement in several ways including the preparation of the late President’s resting place.
Based on all those factors, according to the minority view, the family was bound by that agreement, and the Zambian Government was entitled to enforce it. The minority would therefore have dismissed the appeal with no order as to costs.
‘’The SCA accordingly upheld the appeal with costs, including the costs of two counsel where employed, set aside the order of the high court and replaced it with an order dismissing the Zambian Government’s application’’.
The Zambian government has since indicated that they would abandon further legal challenges regarding the matter. This would allow the Lungu family to, at last, bury their loved one in peace .
