We Can’t Accept Such Reasoning — That’s Why We Have a Constitution – Thembeka Ngcukaitobi tells Zambian Government Lawyer
South Africa, 8 September 2025
The High Court was gripped this morning as Advocate Tembeka Ngcukaitobi delivered a powerful rebuttal on behalf of the family of Zambia’s late President Edgar Chagwa Lungu, following the Zambian government’s weak five-minute submission opposing the family’s application for leave to appeal.
Adv. Ngcukaitobi warned that the government’s arguments pave a “dangerous road” that could deprive widows of their unqualified right to decide where and how their spouses are buried. At the heart of the dispute is the Zambian state’s claim that a foreign contract or law could override the authority of the widow, even on South African soil.
“My learned friend accepts that the agreement is to be interpreted according to South African law, yet he argues that because the next of kin is Zambian, the right to bury is Zambian law. That distinction simply does not exist in law,” Ngcukaitobi told the court.
He explained that South African courts determine applicable law by the lex loci, the law of the place where the cause of action arises. Attempting to split lex causae from lex loci, as the Zambian lawyer suggested, would lead to “conflicting outcomes and chaos for future disputes.”
He added that once South African law applies, Zambian law becomes irrelevant. “
If my learned friend concedes the lex loci is South African law, the question is whether South African law was correctly applied in denying Mrs. Lungu the right to bury her husband. That has enormous implications it could set a precedent for depriving widows of control over their husbands’ bodies.”
Adv. Ngcukaitobi also addressed the misuse of public interest arguments, noting that even precedents like the Senyalti case cannot override the fundamental rights of spouses.
“South African law has always been clear: the right of the spouse is unqualified. She decides what to do; if she is deceased, the children decide. It is the family that has the ultimate say. That is the core of South African law,” he said.
The advocate further demolished the notion of contracts over human remains. Citing authorities including Foote and Xhoshias, he emphasized that South African law does not recognize enforceable contracts over corpses.
“If my learned friend were correct, we would be creating a new law allowing contracts over human remains, even against the family’s wishes. That would turn the common law on its head and violate constitutional principles,” Ngcukaitobi said.
The lawyer warned that the judgment under appeal contains two deeply troubling principles: that a government even a foreign one could override a spouse’s rights, and that contracts over a corpse could be enforceable. Both, he argued, contradict South African law and tradition.
“These are not hypothetical issues,” Ngcukaitobi told the court, citing a South African case where a provincial government attempted to take control of a deceased husband’s body against the spouse’s wishes.
“This is foundational to rights of bodily integrity and autonomy. No court should allow a government to override the family.”
“The important issue of law here is the contest between the rights of a state and the rights of the family to decide on burial. Accepting the government’s argument would create an unprecedented precedent a foreign state overriding a widow’s rights. South African law could never countenance this outcome.”
Adv. Ngcukaitobi concluded by urging the High Court to refer the matter to the Supreme Court of Appeal, stressing that the case is about more than the Lungu family.
“It is about protecting the unqualified rights of spouses and families for generations to come,” he said.
The clash between the Zambian and the South African constitution was inevitable.
Citizenship may decide which direction the matter takes.
I do not think the South African government would want to strain the relationship between our 2 countries.
What the Zambian lawyer should forget about that lungu family. This has already shown that they were never Zambians . To end this battle Zambia govt should South African govt :-
— not allowing body viewing to verify and clear the air surrounding this mystery man who pipo think he is dead but in actual fact alive somewhere and hiding contributing to causing chaos in Zambia such that pipo of Zambia will not vote peacefully
— sue the do called mortuary for not disclosing the truth to the Zambians
Due the hospital which last attended to disclose the truth
Sue South African govt for wasting Zambian precious time who were on national mourning for three days.
Act quickly donot be swayed by time waster’s
Lungu family and CO
Sue Lungu family for lies to the entire world
Remember plan B which could be this
Makebi zulu not to be allowed to practice in Zambia. Strip him off like what happened to lungu
I rest my case
Iye.
Where did this bitterness and hatred come from? As a Bantustan, you should be practicing “humanism”. We are all Zambians, let dialogue prevail. You can not just say someone is not Zambian because they disagree with your messiah, Hakainde.
REJECT TRIBALISM, CORRUPTION AND OPPRESSION.
VOTE FOR CHANGE IN 2026.
That is just an opinion of the raster, lawyer and not what it currently. And he should maybe just propose to various constitutional making bodies in the region to include such pieces in constitutions. Otherwise what he is talking about doesn’t apply and work now.
Why not cite the articles of the law, instead of just South African law? Which article(s) in help me if would argue on articles of the law, not vaguely, the law.
Because his audience are lawyers and judges, who already know these articles.
You will never hear a car mechanic telling another mechanic where the gearbox is located on a vehicle.
Is that clear?
VOTE FOR CHANGE IN 2026.
The lawyer did seem to even understand the judgement he was trying to get leave to appeal and instead got fixated on following the South African constitution. He forgot and was probably thinking he had restarted the case in the constitution court. He was arguing on issues that did not form part of the case. Instead of giving reasons and making heads of appeal to justify why he should be granted leave. He got busy trying to argue with himself and the bench that they can’t use the Zambian constitution. He has had the judgement for over 2 months and didn’t realise that all the matters including the South African constitution were considered before judgement was finalised.