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The Supreme Court of Appeal (SCA) has found that the Pretoria high court erred in concluding that the Zambian government had established a right to an order directing the repatriation of former president Edgar Lungu’s body for a state funeral in Zambia.
On Tuesday the SCA upheld an appeal by the widow and children of the former president and set aside the high court order that authorised the repatriation of Lungu’s body.
Lungu came to South Africa from Zambia in January 2025 for medical treatment. He died on June 5 2025.
There was a dispute between the family and the Zambian government over how, and consequently where, the former president should be buried.
In the immediate aftermath of his death, several meetings were held between representatives of the family and the Zambian government in an effort to reach consensus on the manner of burial.
“This is a matter of some dispute, but stated broadly, the Zambian government wishes to give the late president a state funeral in Zambia, with all the formal trappings, including the involvement of the current president of Zambia, Hakainde Hichilema,” said judge of appeal Raylene Keightley in a majority judgment with which three other judges concurred.
She said the family, citing Lungu’s stated wishes — including a deathbed declaration — insisted that if a state funeral were to be accorded to him, then Hichilema should play no role.
When the attempts at mediating a solution failed, the Zambian government instituted an application in the Pretoria high court.
The application was heard by a full bench of the high court on August 4 2025. On August 8, the panel delivered a judgment in which it ordered that the Zambian government was entitled to repatriate Lungu’s body for a state funeral and burial in Embassy Park in Lusaka, Zambia.
The SCA granted leave to appeal to Lungu’s widow and children on December 11 2025 after the high court had refused leave to appeal in September.
Keightley said Lungu’s widow stated in her court papers that during the period that the former president was receiving palliative care in South Africa, he openly and consistently expressed the wish that he did not want the Zambian government, and particularly Hichilema, to be anywhere near his body or funeral.
“He felt that he had been mistreated by them, and he voiced an objection to the participation in his burial by those who, in his view, had forsaken him in life.”
Keightley said for decades the accepted common law position had been that in the absence of directions from the deceased, decisions regarding his or her burial fell to the heirs in accordance with the principles of succession.
“This accords with our constitution, which recognises the right to privacy and dignity.”
Keightley said a family’s right to decide on the burial of a loved one fell within the inner sanctum of an individual’s family life.
“It is an exercise of family autonomy involving the final act of kinship family members will perform for their loved ones. Any interference impacts upon the family members’ sense of self-worth and self-actualisation and, consequently, their dignity.”
In her dissenting judgment, judge of appeal Thandi Norman found there was a clear and binding agreement between the family and the Zambian government regarding the repatriation, funeral and burial arrangements for Lungu.
She said this agreement was evidenced by documents and public statements, including press briefings where the family spokesperson announced that the agreement had been reached.
“I have found that there was agreement between the parties. A burial of the former president in South Africa is not only against the former president’s wishes, but it is also against the agreement between the parties.”
Norman said the rights of the family were never undermined by the Zambian government.
She said the government of Zambia sent various delegations to negotiate with the family because it realised and respected the family’s autonomy to decide on the burial of the late president.
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