REPUBLIC OF SOUTH AFRI C A
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
C ase Nu m ber: 2025-096565
(1) REPORTABLE: N O /
(2) OF INTEREST TO OT E
(3) REV ISED: NO
16/09/2025
DATE
In the matter between:
ESTHER LUNGU
BERTHA LUNGU
TASILA LUNGU
DALIESO LUNGU
CHIYESO LU N GU
CHARLES PHIRI
MAKEBI ZULU
and
GOVERNMENT OF THE REPUBLIC OF ZAMBIA
First Applicant
Second Applicant
Third A pplicant
Fourth Applicant
Fifth App licant
Sixth Applicant
Se venth App licant
R espondent
2
This judgment was prepared and authored by the Judge whose name is reflected and
is handed down electronically by circulation to the Parties/their legal representatives
by email and by uploading it to the electronic file of this matter on CaseLines. The
date for handing down is deemed to be 16 September 2025.
APPLICATION FOR LEAVE TO APPEAL JUDGMENT
CORAM: LEDWABA AJP, MUDAU ADJP et POTTERILL J (The Court)
[1] This is an application for leave to appeal against the judgment delivered by this
Court on 8 August 2025. In its judgment, this Court upheld an application to repatriate
for a state funeral and burial thereafter in the Republic of Zambia the mortal remains
of the late former President of Zambia, Mr Lungu, in favour of the respondent.
[2] Section 17 of the Superior Courts Act 10 of 2013 ("the Act") provides as follows:
"(1) Leave to appeal may only be given where the judge or judges concerned are of
the opinion that-(a) (i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compe lling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration; ... " As stated in Ramakatsa
and Others v African National Congress and Another, 1 " ... the merits remain vitally
important and are often decisive."
[3] The test for reasonable prospects of success is well established in that the
applicant must convince the Court on proper grounds that there is a sound, rational
basis for the conclusion that there are prospects of success on appeal.2 In the context
of section 17(1 )(a)(ii) of the Superior Courts Act, a compelling reason for an appeal to
be heard can include unique legal principles that a higher court should pronounce on.
[4] Turning then to the merits of the application, the applicants ("the family") have
a three-pronged approach. First, the contention was repeated that as heirs, they have
exclusive burial rights in terms of the common law, which must be taken into account,
exclusive burial rights in terms of the common law, which must be taken into account,
considering the protections afforded by the Constitution. Second, the family submitted
1 (724/2019) [2021] ZASCA 31 (31 March 2021) at para 10.
2 S v Smith 2012(1) SACR 567 (SCA) at para 7.
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that as the dispute between the parties arose in and is litigated in South Africa; the
mortal remains of the late President Lungu is in South Africa; the programme in "FAA?"
was drawn up by the Lungu family in South Africa; the relief is being sought before a
South African court, consequently the South African legal system has the closest and
most real connection to the dispute and the Court should have relied on South African
law. The attack further in this regard is that the Court erred in applying Zambian law
to the dispute in circumstances where the Government of Zambia, as dominus /itis,
failed to place the Zambian law properly before this Court by way of expert evidence.
In addition, this Court's reliance on the decision of Kaunda as a source of Zam bian
law was incorrect because the late President Lungu was stripped of all his benefits as
a former President during his lifetime. Thirdly, it was argued that the order mad e by
this Court is inconsistent with the terms of "FAA?" because any repatriation in terms
of "FAA?" was to be carried out by the Lungu family by way of private charter. "FAA?"
does not authorise any repatriation by the Government of Zamb ia, but the court
ordered that the Government of Zambia should repatriate the body of the late
President Lungu.
[5] The applicants' counsel further argued that a contract cannot be concluded in
respect of a corpse because it has no commercial value. This argument, in our view,
is not relevant to the issues in this matter.
[6] The applicants further referred this court to the case of Mohamed and Another
v President of the Republic of South Africa and Others (Society for the Abolition of the
Death Penalty in South Africa and Another lntervening).3 Mohamed dealt with the
removal by the government, whether by deportation or extradition, of a person to a
foreign country for trial on an offence carrying a death penalty without the government
first securing an undertaking from such a country that a death sentence will not be
first securing an undertaking from such a country that a death sentence will not be
imposed or, if imposed, carried out, contrary to s 10 of the Constitution. The Mohamed
case is distinguishable because it cannot be said that, on the facts of this case, it was
necessary to first secure an undertaking from the Zambian government that their
president will not speak at all events.
3 2001 (3) SA 893 (CC) (Mohamed).
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[7] This Court is satisfied that on the merits there are no reasonable prospects of
success. As for the application of Zambian law, the Court considered that the
deceased was on a temporary visit to the Republic for medical reasons. The main
parties to the dispute are peregrini. The Kaunda decision is a leading case in Zambia
dealing with state burials. The argument that the deceased was stripped of his benefits
is of no moment. He remains a former state president with attendant burial benefits at
state expense upon death. The allegation that the respondent failed to place expert
evidence of Zambian law before this Court is without merit, as the Attorney General is
an expert in Zambian law. The mere fact that "FAA?" records that the parties will
consult and agree as to who will speak at all events does not vitiate the consensus
that was reached. Conflicts and disagreements about burial rights are a common
feature in our courts. Some disputes regarding burial rights are settled after parties
have reached agreements. This is common, although a corpse has no commercial
value.
[8] The argument was that this matter raised unique constitutional issues and
points of law as to whether the constitutional and common law rights of a spouse and
children of the deceased, who are his or her heirs. may be trumped by a state
pertaining to the remains of the deceased. Furthermore, for a Foreign State to assert
a right of burial under its own laws, not South African law, are compelling reasons for
the Supreme Court of Appeal to pronounce on. We are satisfied that no compelling
reasons exist to grant leave to appeal simply because the matter is so fact specific
that there is very little to no prospects that the same set of facts will confront a Court
again.
[9] There is no reason why costs should not follow the result.
[1 O] In the result, the following order is made :
1. The application for leave to appeal is dismissed with costs, which
includes the employment of two counsel on Scale C.
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ACTING JUDGE-PRESIDENT OF T E HIGH COURT
GAUTENG DIVI ON, PRETOR IA
/Ji
ACTING DEPUTY-PRESIDENT 0
GAUTENG DIVISION, JOHANNESBURG
GAUTENG DIVISION, PRETORIA
Heard on: 8 September 2025
For the applicants: Adv. T. Ngcukaitobi SC
Adv. N . Qwabe
Instructed by: Mashele Attorneys Inc.
For the respondent: Adv. B.C. Stoop SC
Adv. D. Mtsweni
Instructed by: VFV Attorneys
Date of judgment: 16 September 2025
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