JAHMAN WAS ON FIRE (He came out better than that family ‘baby lawyer’ at trial), BUT SHIKULU SUCCESSFULLY PUT IT OFF

JAHMAN WAS ON FIRE (He came out better than that family ‘baby lawyer’ at trial), BUT SHIKULU SUCCESSFULLY PUT IT OFF.

In this post, Advocate Ben Stoop (Senior Counsel since 2014) is referred to as ‘Shikulu’, Advocate Tembeka Ngcukaitobi (Senior Counsel since 2020) is referred to as ‘Jahman’ and Advocate Casper Weljemoed as ‘baby lawyer’.

Below is the summary:

JAHMAN: As per South African Law, you can’t contract over a corpse. He cited authorities to that effect (Journal article and a Case).

SHIKULU: The parties did not contract over the corpse. The contract was based on the burial rights, which lead to an agreement to repatriate the corpse. The Court acknowledged this component of the contract, hence making reference to it in the judgement.

JAHMAN: The choice of the Zambian law as the one applicable to the dispute was wrong because the Zambian law has no extraterritorial application.

SHIKULU: The Court has guided that where there is a Conflict of Laws, as to which legal system should apply to a matter before a South African Court, the legal system with the CLOSEST CONNECTION to the case should be applied.

The High Court was therefore on firm ground to choose the Zambian Legal system as the one with the closest connection to the matter that came before it. He cited a decided case (precedent) to buttress this position.

JAHMAN : If the Court had chosen the South African legal system, the widow’s right to bury her husband would take precedence. The South African law, which includes the Constitution grants an unqualified right to the widow to make burial decisions over ECL.

He cited cases from as far back as 1970s to support this argument.

SHIKULU: Supposing that the Court decided to use the South African legal system, we submitted at trial that there is precedent in South Africa which is is like a TWIN BROTHER to, or what Lawyers say on ALL FOURS with , the Zambian case of Kaweche Kaunda.

In the case of Sengadi v Tsambo (40344/2018) [2018] ZAGPJHC 613; 2019 (4) SA 50 (GJ) (3 November 2018) and later Tsambo v. Sengandi (244/19) (2020) ZASCA 46, it was held that where there is a dispute pertaining to the burial rights of a PERSON OF SIGNIFICANT NATIONAL IMPORTANCE, the Rights of the family(which includes a widow, children or siblings and parents) YIELD TO THE BROADER PUBLIC INTEREST.

This judgement, which is more recent that the 1970s cases Jahman was citing is the one that EXTINGUISHED ALL THE FIRE he lit.

Shikulu further submitted that the cited precedent does not violate the rights of the family under the Constitution as it’s a rare exception to the general rule.

JAHMAN: ECL died a common man because he was stripped off benefits for a former President. This is distinguishable to Kaunda who was receiving benefits of former President at the time of his death. Therefore, the government’s claim over ECL’s body is misplaced.

SHIKULU: That argument is OTIOSE and ridiculous. The fact that ECL stopped getting benefits in accordance with the law did not erase the fact that he once served the nation of Zambia as President for 7 years.

JARMAN: Lungu was stripped of his benefits so the government has no right to burry him but the wife.

JUDGE: So is the wife going to get his benefits or not?
JARMAN: yes she wil get the benefits your honor.

JUDGE: so you are agreeing that Lungu’s benefits are still within the confines of the Lungu family?

JARMAN: yes your honor they are. THE END.
………just there we knew jarman had already destroyed his argument by contradicting himself.