Public Interest vs Family Rights, Why the Pretoria High Court Was Right on President Lungu’s Burial

Public Interest vs Family Rights, Why the Pretoria High Court Was Right on President Lungu’s Burial

Tobbius Chilembo Hamunkoyo-LLB
17/08/25

As we now wait to hear what follows from the Pretoria High Court in South Africa, tomorrow the 18th August 2025, and also the outcome from the Constitutional Court, allow me to write this analysis. It is deliberately long and academic, intended for my learned colleagues and those who may not be lazy to read but who will appreciate the detailed reasoning and legal grounding behind this matter.

Agreeing with my fellow Counsel Victor Mukungu-LLB, allow me to add some reasoning to this debate. The question many people are asking is whether the Pretoria High Court in South Africa violated the rights of the Lungu family when it ruled that the Government of Zambia had the right to bury former President Edgar Chagwa Lungu at Embassy Park.

The answer is no. The Court did not ignore the family’s rights but carefully weighed them against the wider public interest before making its decision.

As I, analyse the ongoing legal battle in South Africa between the Zambian Government and the Lungu family, it becomes clear that this is not merely a family dispute but a case that tests the boundaries between private rights and public obligations.

The Court first had to determine which law to apply, a question known in legal terms as a “conflict of laws.”

Since the matter involved the burial of a former Zambian President, the Court rightly concluded that Zambian law had the strongest connection which undisputed fact. Under Zambian precedent,we may be aware that we have the case of Ex Parte Kaweche Kaunda, and the consistent practice of the Zambian Government, courts have long recognised that the burial of a former Head of State is not a private affair but a matter of national significance since 2008 after the dimiss of the third republican President Levy Patrick Mwanawasa, very important.

Public interest ,collective, dignity and unity of the people, must therefore come first.

Still, the High Court did not shy away from considering South African constitutional rights. The judges asked whether, under South Africa’s Constitution, the rights of the family should not be given greater weight.

This shows respect for the Bill of Rights, which protects dignity, privacy, and family life. Advocate BC Stoop, appearing for the Zambian Government, conceded that ordinarily a family has the right to decide on burial matters.

However, he reminded the Court about  the case of  Sengadi v Tsambo (2018), which made it clear that where the deceased is a public figure, family rights may give way to public interest.

The Supreme Court of Appeal later confirmed this principle in Tsambo v Sengadi (2020).

The reason the Lungu family has continued to file applications and pursue appeals is because they believe their constitutional rights, particularly the right to dignity, privacy, and family autonomy,  have been violated by the decision to place President Lungu’s burial under state control.

It clear that from their perspective, the matter is not just legal but also deeply personal. They see themselves as the rightful decision-makers regarding their loved one’s final resting place. This explains their persistence in the South African courts.

However, the broader legal picture shows why the courts have not agreed with them.

Both Zambian and South African jurisprudence make a clear distinction between the burial of a private citizen and the burial of a former Head of State. For an ordinary person, family rights are paramount.

But for a President, the public’s interest in national dignity outweighs family wishes. A state funeral is not simply a ritual; it is an act of collective remembrance that honours the office of the Presidency and unites the nation at large.

In fact, if the Pretoria High Court had chosen to apply South African law directly, the result would likely have been the same. South Africa’s Constitution allows rights to be limited under Section 36 if it is reasonable and justifiable in an open and democratic society.

In this case, the limitation on the family’s burial rights is justified by the overwhelming public interest in ensuring that President Lungu, like his predecessors, is accorded a state burial at Embassy Park in Lusaka , Zambia.

This is not about undermining the family but about respecting the office he once held and the nation he once led, very important.

In conclusion, the Pretoria High Court did not violate the Lungu family’s rights but instead struck a careful balance, showing that while private wishes are important, they must bow to the higher call of public interest in the case of a former Head of State.

Even if the Constitutional Court of South Africa entertains the appeal,in my view ,it is unlikely to overturn the decision. The law in both Zambia and South Africa points to one truth,  when the deceased is a national leader, the state, and not the family, carries the final responsibility to decide on the burial.