08/09/2025
KEY ARGUMENTS TO HELP ZAMBIANS UNDERSTAND THE CASE LUNGU FAMILY IS PURSUING
Theme One:
We Can’t Accept Such Reasoning — That’s Why We Have a Constitution – Thembeka Ngcukaitobi tells Zambian Government Lawyer
The High Court was gripped this morning as Advocate Tembeka Ngcukaitobi delivered a powerful rebuttal on behalf of the family of Zambia’s late President Edgar Chagwa Lungu, following the Zambian government’s weak five-minute submission opposing the family’s application for leave to appeal.
Adv. Ngcukaitobi warned that the government’s arguments pave a “dangerous road” that could deprive widows of their unqualified right to decide where and how their spouses are buried. At the heart of the dispute is the Zambian state’s claim that a foreign contract or law could override the authority of the widow, even on South African soil.
“My learned friend accepts that the agreement is to be interpreted according to South African law, yet he argues that because the next of kin is Zambian, the right to bury is Zambian law. That distinction simply does not exist in law,” Ngcukaitobi told the court.
He explained that South African courts determine applicable law by the lex loci, the law of the place where the cause of action arises. Attempting to split lex causae from lex loci, as the Zambian lawyer suggested, would lead to “conflicting outcomes and chaos for future disputes.”
He added that once South African law applies, Zambian law becomes irrelevant. “
If my learned friend concedes the lex loci is South African law, the question is whether South African law was correctly applied in denying Mrs. Lungu the right to bury her husband. That has enormous implications it could set a precedent for depriving widows of control over their husbands’ bodies.”
Adv. Ngcukaitobi also addressed the misuse of public interest arguments, noting that even precedents like the Senyalti case cannot override the fundamental rights of spouses.
“South African law has always been clear: the right of the spouse is unqualified. She decides what to do; if she is deceased, the children decide. It is the family that has the ultimate say. That is the core of South African law,” he said.
The advocate further demolished the notion of contracts over human remains. Citing authorities including Foote and Xhoshias, he emphasized that South African law does not recognize enforceable contracts over co**ses.
“If my learned friend were correct, we would be creating a new law allowing contracts over human remains, even against the family’s wishes. That would turn the common law on its head and violate constitutional principles,” Ngcukaitobi said.
The lawyer warned that the judgment under appeal contains two deeply troubling principles: that a government even a foreign one could override a spouse’s rights, and that contracts over a co**se could be enforceable. Both, he argued, contradict South African law and tradition.
“These are not hypothetical issues,” Ngcukaitobi told the court, citing a South African case where a provincial government attempted to take control of a deceased husband’s body against the spouse’s wishes.
“This is foundational to rights of bodily integrity and autonomy. No court should allow a government to override the family.”
“The important issue of law here is the contest between the rights of a state and the rights of the family to decide on burial. Accepting the government’s argument would create an unprecedented precedent a foreign state overriding a widow’s rights. South African law could never countenance this outcome.”
Adv. Ngcukaitobi concluded by urging the High Court to refer the matter to the Supreme Court of Appeal, stressing that the case is about more than the Lungu family.
“It is about protecting the unqualified rights of spouses and families for generations to come,” he said.
Theme Two:
Lungu Family Appeal Raises Questions of Law, Dignity, and Sovereignty
The High Court has been asked to grant leave to appeal in the high-profile case involving the burial of Zambia’s late president, Dr. Edgar Chagwa Lungu, as his family continues its legal battle to protect his dignity and the wishes of his widow.
Advocate Tembeka Ngcukaitobi, representing the family, told the court that the case raises complex and novel legal issues that cannot be left to a single judgment.
“This is the first matter we know of where a foreign state comes to South African courts seeking to enforce its will over the remains of a deceased person,” he argued.
Central to the family’s case is the claim that the Zambian government cannot revive benefits that had already been revoked during Mr. Lungu’s lifetime. While the Kaunda precedent is often cited, Ngcukaitobi pointed out that Kaunda died while still enjoying state benefits, whereas Mr. Lungu had lost them.
“You cannot reinstate rights on a co**se,” he said firmly.
The advocate also highlighted that Zambia’s own legal history drawn from both English common law and Roman-Dutch traditions recognises that human remains fall outside contractual obligations. Instead, the authority rests with the heirs.
“Both traditions agree: it is the family who decides. And in this case, the widow has spoken.”
Another key strand of the argument rests on constitutional rights. Zambia, like South Africa, has a supreme constitution that protects dignity, equality, and privacy. Ngcukaitobi insisted that these rights extend to Mrs. Lungu as the surviving spouse, and no one can compel her to accept state-sponsored burial benefits against her will.
Beyond the personal tragedy lies a profound constitutional concern. Allowing a foreign government to dictate terms of burial, Ngcukaitobi warned, risks setting a dangerous precedent where state power is projected across borders, eroding both sovereignty and individual rights.
“The case is fact-specific, yes,” he conceded.
“But it is precisely its uniqueness that calls for the Supreme Court of Appeal to pronounce authoritatively.”
For the Lungu family, the legal battle has been long and painful. Yet at its core, their appeal is about something universal: the right of a widow to bury her husband with dignity, choice, and peace.
Theme Three
Why should a Foreign Government demand another sovereign country to abandon its own law and use foreign law – Lungu Family Lawyer questions
….as Zambian Government’s Demand in Lungu Burial Dispute Raises Alarming Questions of Law and Sovereignty…..
Constitutional and human implications have unfolded in the South African High Court, where the family of Zambia’s late President, Dr. Edgar Chagwa Lungu, is resisting what they describe as an “intrusion” by the Zambian government into their most private and sacred decision: where and how their loved one should be laid to rest.
At the heart of the dispute is an unprecedented demand by the Zambian state that South African courts apply Zambian law to compel the return of Mr. Lungu’s remains to Lusaka for burial, despite his widow’s wishes to the contrary. The move, argued by the state, is grounded in benefits and entitlements tied to his former presidential office.
But to the Lungu family, represented by the respected advocate Tembeka Ngcukaitobi, the case goes far beyond burial rites. It is about sovereignty, dignity, and the fundamental question of whether a foreign government can extend its reach into another country’s courts to dictate the treatment of human remains.
In court, Ngcukaitobi made it clear: “This is the first matter we are aware of where a foreign state comes to South African courts and demands that its law be applied extraterritorially. It is a deeply unsettling precedent.”
The case has drawn sharp attention because of its uniqueness. Legal analysts say that while cross-border disputes are not new, the attempt to enforce burial rights through a foreign government is without parallel.
This is not a case of enforcing a commercial contract or resolving a trade dispute. We are talking about the bones of a human being, a former president, and a widow’s right to mourn him as she chooses. That another state believes it can impose its law in this context should alarm all of us.
The Lungu family’s case rests on a simple but powerful principle: a co**se has no rights. Rights belong to the living in this instance, to the widow, Mrs. Esther Lungu, who holds the natural authority to decide how and where her husband is buried.
Adv. Ngcukaitobi argued that any suggestion otherwise is a distortion of law and logic.
“Once life ends, rights also end. What the Zambian government is attempting to do is artificial: to reinstate rights and benefits on a co**se. But those benefits, if they exist at all, are for the widow, not for the deceased.”
This argument cuts to the core of the Kaunda precedent, which the Zambian government has leaned on. In Kaunda’s case, the former president died while still enjoying state benefits. By contrast, Edgar Lungu’s presidential benefits had been withdrawn before his death, making any attempt to reinstate them posthumously a legal impossibility. The family insists that the state’s position not only strips Mrs. Lungu of her dignity but also tramples on the constitutional rights of a widow, who cannot be compelled to accept benefits or burial arrangements against her will.
What complicates matters further is the tension between Zambian law, South African law, and universal principles of human dignity. South African courts must now grapple with whether they can, or should, enforce another country’s laws in such a sensitive matter. As Ngcukaitobi reminded the bench, the law of a foreign state is treated as a matter of fact in South African courts it must be proven through expert evidence, not simply asserted. In this case, the Zambian state has not provided affidavits from legal experts to establish what Zambian law actually is.
Even if such evidence were produced, Zambia’s own legal history is complicated, drawing from both English common law and Roman-Dutch traditions. Both traditions, however, converge on one point: the burial decision lies with the heirs, not the state. Adding to this complexity is Zambia’s Constitution, which, like South Africa’s, enshrines rights to privacy, dignity, and equality. Ngcukaitobi argued that these rights would have protected Mrs. Lungu in Zambia just as they do in South Africa.
Perhaps the most unsettling element of the case is the broader precedent it threatens to set. If South African courts allow Zambia to dictate the terms of this burial, what stops other states from making similar demands in the future?
“The uniqueness of these facts shows why it must be resolved by the Supreme Court of Appeal,” Ngcukaitobi said.
“The case is about more than the Lungu family. It is about protecting the sovereignty of our courts and the rights of families from being overridden by foreign powers.”
Behind the legal arguments lies a grieving family caught in a storm of politics, law, and diplomacy. For Mrs. Lungu, the case is not an academic debate but a deeply personal struggle to preserve her husband’s dignity and her right to mourn him on her own terms.
“What you cannot have,” Ngcukaitobi told the court, “is a government seeking to override the widow’s decision on how to bury her husband. That is not just law that is humanity.”
The family has made it clear: they are not refusing burial. They are refusing state control of what is an intimate, family decision. The High Court is now weighing whether to grant leave to appeal, potentially escalating the matter to the Supreme Court of Appeal. Should it reach that stage, the judgment will likely be scrutinised across the continent for its implications on sovereignty, family rights, and the reach of state power.
For the Lungu family, the case has already been a painful reminder of how political and legal battles can intrude into private grief. Yet they remain resolute, determined to ensure that no government foreign or domestic can dictate the burial of a loved one against the wishes of the family. As one legal observer put it:
“This case is not just about Zambia, or South Africa, or the Lungu family. It is about the line between state power and human dignity. And once that line is crossed, it is very difficult to redraw.”
Credit report to
Zambianobserver
