Here is the Lungu family’s appeal in full

The Lungu family has applied for leave to appeal the High Court decision that ordered former Zambian president Edgar Lungu to be buried in Zambia rather than South Africa.

IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)

Case Number: 096565/2025

In the matter between

ESTHER LUNGU – First Applicant
BERTHA LUNGU – Second Applicant
TASILA LUNGU – Third Applicant
DALIESO LUNGU – Fourth Applicant
CHIYESO LUNGU – Fifth Applicant
CHARLES PHIRI – Sixth Applicant
MAKEBI ZULU – Seventh Applicant
TWO MOUNTAINS – Eighth Applicant

And

GOVERNMENT OF THE REPUBLIC OF ZAMBIA – Respondent

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In re

GOVERNMENT OF THE REPUBLIC OF ZAMBIA – Applicant

And

ESTHER LUNGU – First Respondent
BERTHA LUNGU – Second Respondent
TASILA LUNGU – Third Respondent
DALIESO LUNGU – Fourth Respondent
CHIYESO LUNGU – Fifth Respondent
CHARLES PHIRI – Sixth Respondent
MAKEBI ZULU – Seventh Respondent
TWO MOUNTAINS – Eighth Respondent

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APPLICATION FOR LEAVE TO APPEAL

BE PLEASED TO TAKE NOTICE THAT the First to Seventh Applicants (“the Applicants”) intend to apply for leave to appeal against the whole judgment and order made by his Lordship Mr Justice Ledwaba AJP, his Lordship Modau ADJP and her Ladyship Potterill J (the “Full Court”), delivered on the 8th day of August 2025.

PLEASE TAKE NOTICE FURTHER that the Applicants apply for leave to appeal in terms of Section 17(1)(a)(i) and/or Section 17(1)(a)(ii) of the Superior Courts Act, 10 of 2013.

PLEASE TAKE NOTICE FURTHER that the Applicants apply for leave to appeal to the Supreme Court of Appeal in terms of Section 16(1)(a)(ii) of the Superior Courts Act, 10 of 2013.

PLEASE TAKE NOTICE FURTHER that the legal and/or factual grounds upon which the Applicants rely for the application for leave to appeal against the full judgment and order of the Full Court are the following:

1. The Full Court erred in granting prayers 1 to 7 of the order.
2. The Full Court erred in granting prayer 4 of the order, which prayer does not align with the purported agreement as set out in Annexure “FAA7”:

2.1 In that it does not make provision for the family to repatriate the remains of the Late President Lungu;
2.2 Annexure “FAA7” did not set out any involvement of the Current President in the funeral and burial of the Late President Lungu, yet the order implies his involvement.

3. The Full Court erred in granting prayer 4 of the order, relying on an alleged agreement, when the relief sought was never framed as specific performance. The relief sought was for a declarator of rights.
4. The Full Court erred in finding that the Respondent could seek to enforce Annexure “FAA7” as a purported agreement, when the Respondent on the same day handed a handwritten program, Annexure “EL16”, to the family that directly contradicts the content of Annexure “FAA7”.

5. The objective evidence shows that the Respondent sought to enforce Annexure “EL16” and never Annexure “FAA7”.
6. Further, Annexure “FAA7” does not, on the reading thereof, purport to be the final agreement between the parties as it specifically states that the parties will still need to consult and agree who speaks at all events.

7. The Court erred in finding that Mr Zulu confirmed the agreement for the Applicant in relation to Annexure “AA7” on a televised briefing. Annexure “FAA10” is a transcript of this press briefing given by the Seventh Applicant and correctly outlined the correct factual position at that stage, namely that:

7.1 At no time did the administration take any interest in the late President Lungu’s well-being after his removal from office. President Lungu said his wishes were that in the event of his death, those who never showed any interest in his welfare while he was alive should not be allowed to pretend to be interested in his welfare at death. It is important to emphasise that the family is proceeding based on the guarantees given by the Government of the Republic of Zambia that they will not deviate from the undertakings or betray the trust of the family and the wishes of the late President Lungu.

8. The Full Court correctly found that the submission and case of the Respondent was that a tentative program was drawn up by the family, Annexure “FAA7”. Despite this common cause fact the Full Court proceeded to make a different factual finding, contrary to the common cause facts that Annexure “FAA7” marked a tentative proposal that the Respondent never accepted.

9. The Full Court erred in failing to consider the full set of events between the parties for the dates of 10 June 2025 to 18 June 2025, specifically, the further draft programs sent from the Respondent to the Applicants, which facts objectively show that as at 10 June 2025, there was no consensus reached on any agreement.

10. The Full Court failed to correctly apply the test as set out in Plascon-Evans on the facts of the matter. The Full Court ought to have found that it cannot make a final finding on whether an agreement was reached or not, based on the very limited facts as set out in the Founding Affidavit.
11. The Full Court erred in finding that Zambian Law applies in that:

11.1 The Society of Lloyd’s case, on which the Full Court relied, was decided on the fact that the parties agreed to the foreign jurisdiction being applied. In this case the parties never agreed to apply the law of Zambia;
11.2 Further, the closest and most real connecting factor in this instance is the Late President Lungu’s death in South Africa;

11.3 Further, the Respondent wishes to rely on a purported agreement that was concluded in South Africa, meaning the South African law would apply, in terms of the principle of lex contractus;
11.4 In addition, the mere domicile or nationality cannot be afforded more weight than the principles of lex loci delicti commissi, which is a binding private international law and must be applied by the Honourable Court.

12. The Full Court erred in finding that Zambian law dictates that the Late President Lungu must be repatriated and buried in Zambia. No expert evidence was provided to substantiate this finding on Zambian law. The matter of Kaunda also does not begin to validate this proposition as it was a review and not ever decided on the merits.

13. The Court erred in finding that the details of the burial process of a loved one are trivial and matter little. Such a finding is in direct contravention of the Constitution of South Africa, specifically sections 10, 12, 15 and 30.

14. The Court erred in finding that the counter-application ought to be dismissed based on the purported trivial nature of the objections of the family.

15. The Full Court ought to have found that the Respondent acted, at all relevant times, in bad faith in misrepresenting to the family that the Current President will not take any part in the burial of the Late President Lungu, wherefore the purported agreement, if proven, falls to be declared void due to impossibility and/or ought not to be enforced as it would result in undue harm to the Applicants.

16. The Full Court erred in granting relief that effectively ignores the express wishes of the Late President Lungu, in allowing the current President to preside over his funeral and burial.

17. The Full Court erred in not dismissing the application with costs of two counsel.

DATED at Pretoria on this the 8th day of August 2025.

MASHELE ATTORNEYS
1st to 7th Respondents Attorneys
29 Scott Street, Waverly, Johannesburg, 2090
Tel: 010 500 4385
Email: info@mashelelaw.co.za / kabeloa@mashelelaw.co.za
Ref: CIV/0406/MR/2025

TO: The Registrar of the High Court, Pretoria

AND TO: VFV Attorneys – Attorneys for the Applicant
Block A, Corporate Place, 39 Selati Street, Ashlea Gardens, Pretoria
Tel: 012 460 8704
Email: hemisha@vfv.co.za

AND TO: Two Mountains Burial Services (Pty) Ltd – Eighth Respondent
Email: LegalServices@twomountains.co.za / johan@concessus.co.za