Lungu’s Body to Remain in South Africa Pending Appeal

The remains of former Zambian President Dr. Edgar Chagwa Lungu will not be moved from South Africa following the successful filing of an urgent appeal by his widow and family against a court order for repatriation.

The South African High Court, Gauteng Division in Pretoria, had earlier ruled in favour of an application by the Attorney General of the Republic of Zambia to return Lungu’s body to Zambia for burial. However, the family lodged an urgent appeal challenging the “whole judgment and order” issued by Judge Ledwaba.

Under South African law, the filing of a notice of appeal generally acts as an automatic stay of execution of a judgment, halting enforcement until the appeal is decided. This principle is rooted in Section 18 of the Superior Courts Act of 2013, which states that “unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal.”

South Africa’s hybrid legal system—combining Roman-Dutch law, English common law, and customary law—recognises that while a notice of appeal typically suspends a judgment, exceptions can be made. In such cases, the winning party must demonstrate irreparable harm if the order is not enforced and that the losing party will not suffer irreparable harm if it is.

The stay in this case means Lungu’s body will remain in Pretoria until the appeal is heard. The BBC reports that private security services have been engaged to guard the remains at the morgue following repeated attempts to remove the body without authorisation.

Legal experts say it is unlikely the Zambian government will attempt to move the body before the appeal is resolved, as doing so could violate South African law. The Sheriff of the Court is not expected to sign any enforcement orders while the appeal is pending.

Yesterday, the Pretoria High Court in South Africa authorized and ordered Two Mountains, the funeral parlour keeping the body of the late former President of Zambia, Edgar Lungu, to immediately surrender his body to the Zambian government for repatriation and burial.

In a landmark judgment delivered in South Africa today, Judge Aubrey Ledwaba, sitting together with two other judges, ordered that Two Mountains should, upon being served with the court order by the Sheriff of the Pretoria High Court, immediately surrender the body of the late Mr Lungu to the representative of the Zambian government.

“The eighth respondent is authorized and ordered upon service of the court order by the Sheriff of this Honourable Court to immediately surrender the body of the Late President Lungu to a representative or representatives of the Zambian High Commission to enable the applicant to repatriate the body to Zambia for the purposes stated in paragraph 4 above,” Judge Ledwaba read the judgment in court.

Paragraph four of the judgment is an order that the applicant, which is the government of the Republic of Zambia, is entitled to repatriate the body of the late Mr Lungu for a state funeral and burial thereafter at Embassy Park in Lusaka.

The court further ordered and authorized that the former first lady, Esther Lungu and the late Mr Lungu’s family, including Mr Makebi Zulu, the late former President’s lawyer, should be present when the body of the late Mr Lungu is surrendered to the government of Zambia and repatriated for the state funeral and burial at Embassy Park in Lusaka.

“The First to Seventh Respondents are authorized to be present when paragraphs 4 and 5 of this order are executed, and an Aide De Camp, the late president’s physician, and two family members may accompany the coffin containing the body of the late President Lungu during the repatriation,” Judge Ledwaba said.

The judge added that there is no order as to costs, which includes reserved costs.

And the Pretoria High Court has ruled that the wish of the late former President not to be accorded a state funeral cannot override public interest.
Referring to the case of The People v Secretary to the Cabinet Ex parte Kaweche Kaunda (HP768 of 2021) [2021] ZMHC 6 (7 July 2021), Judge Ledwaba said public interest can override personal wishes.
He said in this regard, the court (Pretoria High Court) referred to the case of The People v Secretary to the Cabinet Ex parte Kaweche Kaunda (HP768 of 2021) [2021] ZMHC 6 (7 July 2021).
“That court stated that a state funeral is a public funeral ceremony, observing the strict rule of protocol, held to honour people of national significance. In addition to that, even if it was a personal wish of the late President not to be accorded a state funeral, such a wish must be overridden by the public interest,” the judge ruled.

Judge Ledwaba observed in his judgment that the late President Lungu, like any other President in established democracies around the world, deserves to be buried with the necessary dignity.
“This court cannot bar a President of another country from attending a state funeral,” he said in the judgment, noting that there is no doubt that the current President of Zambia would be involved in receiving foreign dignitaries as Head of State of the host country.

On the issue of whether Zambian or South African law is applicable, the Pretoria High Court considered the decision of Society of Lloyd’s supra; one has to determine a flexible and sensitive manner in which the legal system has the closest and most real connection to the dispute.
In legal terminology, ‘supra’ means ‘above.’

“The domicile, habitual residence and nationality of the late President and the family are connecting factors that would point to the Zambian law as proper lex causae,” he said.
Lex causae is a Latin legal term which means ‘the law of the cause’ referring to the law that governs the substantive rights and obligations of parties in a legal dispute, rather than the procedural rules of the court.

Former President Lungu died on June 5, 2025, at a private hospital in South Africa. He was 68 years old.

On 24th June 2025, Zambia’s Attorney General, Mulilo Kabesha, representing the government, launched an urgent application in the Pretoria High Court for an order to, among other things, seek that the funeral parlour (Two Mountains) be ordered to keep and to preserve the body of the late former President Lungu and not to remove or dispose of it in any manner pending the finalization of the application seeking its repatriation.

The urgent application followed the earlier decision by the Lungu family to bury the body in South Africa at a private funeral, citing some disagreements with the government of Zambia.
The following day, on 25 June 2025, the Pretoria High Court, pursuant to an agreement by the parties ordered that the funeral and burial of the late President Lungu be suspended pending the determination of the main application.

And speaking after the judgment, Mr Kabesha, said the ruling by the Pretoria High Court ‘makes good sense’ because the late Mr Lungu belonged to the Zambia.

The late Mr Lungu led Zambia as President from 2015 until August 2021.