Online Reporter
The Gauteng High Court in Pretoria has dismissed with costs ex-Zambian President Edgar Lungu family’s bid for leave to appeal to the Supreme Court of Appeal (SCA) the High Court judgment that ruled that the Zambian government is entitled to repatriate his body for a State funeral and burial.
The family turned to the High Court, arguing, among other things, that this battle over the remains of the former President raised significant questions of law that needed to be resolved by the appellate court.
The High Court, however, in its judgment disagreed, finding that there were no reasonable prospects of success and that there are no compelling reasons that exist because the matter is so fact-specific that there is very little to no prospect that the same set of facts will confront a court again.
The application was subsequently dismissed with costs.
The family has the option of trying to petition the SCA. If that fails, they also have the option of the Constitutional Court.
Failure to exercise these options means that the full bench judgment still stands and the Zambian government can begin to execute the order and start the repatriation process.
Lungu died in June, sparking a legal battle between his family and the Zambian government over his final resting place. In its judgment, the 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.
“As for the application of Zambian law, the court considered that the deceased was on a temporary visit to the Republic [of South Africa] for medical reasons,” the judgment reads.
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.
“The mere fact that ‘FAA7’ records that the parties will consult and agree as to who will speak at all events does not vitiate the consensus that was reached,” the court said.
‘A corpse has no commercial value’The court further pointed out that disputes and disagreements over burial rights frequently arise in South African courts.
Many such cases are resolved once the parties reach agreements, which is a common occurrence, “although a corpse has no commercial value”.
In addition, the court dismissed the family’s claim that the case involved special constitutional questions about whether the government could overrule a spouse and children’s rights over a deceased person’s remains.
“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,” the judgment concluded.
Legal disputeLungu died on 5 June in Pretoria, aged 68.
The Zambian government offered to repatriate his body for a state funeral, and although an agreement was reached, the family later accused the government of breaching it and announced plans to bury him in South Africa.
The high court suspended the burial on 25 June and, on 8 August, ordered that his body be returned to Zambia for a state funeral.
The family then appealed the ruling. – SABC/The Citizen
