THE QUESTION OF COSTS IN THE LUNGU BURIAL CASE: A COMPARATIVE REFLECTION
The recent ruling of the Gauteng High Court in the matter of the late President Edgar Lungu’s burial has generated considerable debate, not merely on the substantive outcome but on the ancillary question of costs. By directing the Lungu family to bear costs, the court raised broader concerns about fairness, precedent, and the treatment of public interest litigation in constitutional democracies.
PUBLIC INTEREST AND THE PRINCIPLE OF COSTS
In most common-law systems, the principle that “costs follow the event” is well established. The losing party ordinarily pays. However, when a case is deemed to serve public interest — especially when it raises constitutional, governance, or human dignity issues — courts often depart from this principle. The rationale is that litigants who bring such matters perform a civic duty in clarifying the law for the benefit of society. To punish them with costs risks chilling future efforts to hold institutions accountable.
SOUTH AFRICAN PRECEDENT
South Africa itself has a long history of acknowledging the special status of public interest litigation. The landmark Biowatch Trust v Registrar, Genetic Resources (2009) case firmly established that in constitutional matters, successful government respondents should ordinarily not be awarded costs against losing public-interest litigants.
The Constitutional Court held that penalizing such litigants undermines the enforcement of rights and discourages civic engagement in democratic oversight. Against this backdrop, the Gauteng High Court’s insistence on costs in the Lungu case appears inconsistent with the spirit of its own jurisprudence.
ZAMBIA’S PRACTICE
In Zambia, courts have similarly exercised caution in awarding costs in cases of public significance. For example, in disputes concerning presidential eligibility, parliamentary petitions, and constitutional interpretation, judges have occasionally opted for each party to bear its own costs, acknowledging that such litigation serves a wider democratic purpose. Had the High Court adopted this approach in the Lungu matter, it would have demonstrated sensitivity to the symbolic importance of the case, without compromising the government’s legal victory.
KENYA AND REGIONAL PRACTICE
Kenya’s courts, particularly under the 2010 Constitution, have embraced the principle of promoting access to justice by limiting punitive costs. The Supreme Court of Kenya, in electoral disputes, has often noted that costs should not be wielded as a weapon to discourage legitimate petitioners. The East African Court of Justice, likewise, has emphasized that in public interest or treaty-based cases, costs should be carefully balanced to avoid discouraging regional accountability.
THE SYMBOLIC WEIGHT IN THE LUNGU CASE
Imposing costs on the Lungu family carries both symbolic and practical consequences. Symbolically, it appears to stigmatize the family’s attempt to exercise what they perceived as a right to determine burial arrangements. Practically, it places a financial burden on the estate of a deceased head of state, at a time when national reconciliation and dignity should take precedence.
CONCLUSION
The Gauteng High Court acted within its discretion. Yet, in doing so, it overlooked a broader jurisprudential trajectory that recognizes the unique role of public interest litigation in strengthening democracy. Comparative practice in South Africa, Zambia, Kenya, and the region underscores the need for courts to avoid chilling access to justice.
Justice is not only about legal correctness; it is also about fostering trust that the judiciary acts with fairness, balance, and compassion. In this case, while the substantive ruling may have resolved the burial dispute, the decision on costs risks eroding public confidence in the impartiality and sensitivity of the bench.
Certain things people we just invite them ourselves so is the Case of this ECL family.
South Africa as a Country is not like Zambia where you can systimatically fool Judges and insult everuone just because you are someone NO.
Before ECL family sneaked to appeal to the Constitutional Court of South Africa, they RASTA lawyer wss in the same high Court and lied to the bench that the family and the government of Zambia were in discussions – negotiating over the same Lungu matter and one of the Judges said something i have just forgotten- even mentioned something like a train reaching or whatever, meaning he was sure and hoped that the negotiations will yield the desired results but after some days these crooks were in the Constitutional Court but they were sent back, again to the same Court they blindly tried to avoid. So these are the implications and even trying to leture the judges on a straight forward issue? No no no no bane ifi fyena fyakuyifwayila. And from the look of things, this ECL family are trying to hide something but with the route they have taken they will, big time be embarrassed and be fixed (jailed ) for their sins. Where we have reached! Uuummm babamo nomba ifingi fyalasokoloka.
NIPANO TULI wina azalila.
Yes,I see more additional costs for Zambian government lawyers
You hit the nail on the head! Additionally, the court is aware that the family has a substantial amount of looted money at their disposal. Esther isn’t clever enough to lead everyone on a fool’s errand. As for ECL, he is a wealthy refugee in a distant country, watching the drama unfold while sipping on a drink.
Sometime what people say beats me. You are saying the South African courts were unfair in dismissing ECL’s case with costs against the Government. But take a moment—what if it were the Lungus who had won the case? Surely, the Government would have been made to pay heavily. The truth is, the Lungus should have anticipated this outcome and avoided it from the very beginning. Now that they are the ones paying the price, suddenly it is seen as unjust. It’s like the saying goes: when a dog bites a goat, it’s considered normal, but when a goat bites a dog, then it’s seen as strange.
This case is anchored on anger over proceeds of crimes cases. There is no public interest. Every body should be buried where they came from, that is what the judges are saying. There is no strain on the deceased’s estate. Still hundreds of millions of dollars will remain.
Better Lungu comes out of hiding so that the matter is closed.
It is evident that this family is hiding something. No wonder Makebi said if the case has to go as far as the supreme court, so be it.
Extremely uncultured family!!
At this point it is not about burial place, it is about the body to be buried. I doubt Makebi Zulu has physically seen the body of Lungu. Even Lungu’s loyalists like Lubinda, Nakachinda have not. I personally don’t care whether he buried in Zanzibar or Zimbabwe that’s beside the point now. Body Viewing is of paramount importance at this stage.