In this guest post, Mark Hill KC considers some of the issues raised in the recent judgment of the High Court of South Africa, Gauteng Division, Pretoria, in Government of the Republic of Zambia v Lungo and others.

Regular readers of this blog will be familiar with the range of sensitive issues attendant upon the legal treatment of the dead. Ecclesiastical courts, for example, are much exercised by petitions seeking the exhumation of human remains when inventive arguments of exceptionality are raised to try and justify a departure from the legal principle and doctrinal norm concerning the permanence of Christian burial.[1] English common law has long recognised that there is ‘no property in a corpse’.[2] The late Lord Judge (formerly Chief Justice of England and Wales) suggested that this legal principle derived, in part at least, from a traditional understanding that a dead body was the temple of the Holy Ghost, and as such it was sacred and inviolate.[3] The exceptional feature in the recent case of Government of the Republic of Zambia v Lungo and others [2025] ZAGPPHC 096565 was that the corpse was that of a former head of state: and the added complexity was that wishes of the deceased’s relatives and those of the government of the country concerned were substantially at variance.

Background

Edgar Chagwa Lungu (11 November 1956 – 5 June 2025) was a Zambian politician who served as the sixth President of Zambia. In a presidential by-election in January 2015 he narrowly defeated opposition candidate Hakainde Hichilema and was subsequently elected to a full presidential term in August 2016, again narrowly defeating Hichilema, who disputed the result and filed a case at the Constitutional Court of Zambia to nullify it. His case was dismissed. At the conclusion of this full term in 2021, Lungu lost the presidential election to Hichilema.

Lungu died on 5 June 2025 in Johannesburg, South Africa where he was undergoing medical treatment. The Zambian government announced that a state funeral with full military honours would be accorded to Lungo and it designated Embassy Park in Lusaka as the place for interment, as is customary for former presidents. In the days following the death, representatives of the Zambian government held discussions with Lungu’s widow and children regarding the repatriation of Lungu’s body to Zambia, to lie in state pending a state funeral followed by burial in Embassy Park. An agreement to that effect was made and documented.

On the day scheduled for repatriation, Lungu’s family announced that it would not proceed and that his remains would be buried in South Africa at a private family ceremony. The government of Zambia applied to the High Court in Pretoria for an order compelling the preservation and release of Lungu’s body for repatriation.

Issues

The hearing was before Acting Judge-President Ledwaba, Acting Deputy Judge-President Mudau and Judge Potterill. The judgment identifies the two main issues which the Court was required to decide. First, whether a binding agreement had been concluded between the Government of Zambia and the Lungu family concerning repatriation and burial arrangements. Secondly, whether the law of South Africa or that of Zambia should prevail in addressing pacta sunt servanda, the principle that parties should be held to their contractual agreements. The family contended that no genuine agreement existed, or that any agreement was voidable due to misrepresentation.

The Court determined that Lungu remained domiciled in Zambia at the time of his death. Accordingly, the question of a state funeral for a former head of state was intimately linked to Zambian public law and policy. Under Zambian public law and as a matter of public policy, a former president’s wishes or those of his family, cannot outweigh the right of the state to honour the individual with a state funeral and burial at the official site designated for national leaders. Under Zambian law, such is a matter of public interest and protocol in the case of a person of national significance. Thus, even if a late president had expressed a desire not to be given a state funeral, such a wish must be overridden by public interest.  The Court therefore held that the Government of Zambia was entitled to insist on a state funeral for Lungu, and ordered accordingly. It directed the family to surrender Lungu’s body immediately. The Court made no order for costs.

I understand that the family have already indicated an intention to appeal and that the order directing the surrender of Lungu’s body has been stayed pending the determination of the appeal. Enhanced security has been put in place at the morgue where the body is currently held to prevent its unlawful removal.

Comment

Although on any account, the facts of this case are exceptional – and probably unique – there are resonances of principles which can also be derived from common law cases, both secular and ecclesiastical. First, in keeping with one of the factors identified by the Court of Arches in Blagdon, the wishes of the relatives of the deceased, whilst significant, are not determinative. Secondly, the national significance of individuals and the comity of nations are relevant factors, which have also featured in some exhumation cases. In Re St Mary the Virgin, Hurley [2001] 1 WLR 831, Boydell Ch directed the grant of faculty to allow the exhumation and repatriation of a Brazilian national hero who was buried in England where he had been living in exile. Likewise, the remains of Polish war hero General Wladyslaw Sikorski were repatriated in 1993, fifty years after the military commander, who had headed Poland’s government in exile, was killed in a plane crash. He had been buried with full military honours in a municipal cemetery at Newark, England, hence the exhumation was carried out under the authority of a ministerial licence rather than a faculty. Significantly, in both these cases, the wishes of surviving family members coincided with the public interest case being advanced. In Re Holy Trinity, Bosham (Chichester Consistory Court, 2003), Hill Ch gave considerable weight to the fact that the petition related to Harold Godwinson, a former English king, albeit that the petition was refused.

The decision also resonates with the more commonplace situations that routinely come before the family courts and the Court of Protection. The wishes of family members do not always prevail because the judicial function is wider and less constrained: it is to consider the welfare principle or the best interests of the child, as applicable. Perhaps this decision illustrates the breadth and variety of the paternalism of the civil courts which, in appropriate cases, can rule that the sincerely held views of a deceased’s family should yield to public interest concerns. When does a national figure become public property?

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Mark Hill KC is Distinguished Global Professor of Law at the University of Notre Dame London Law Programme and formerly Extraordinary Professor at Pretoria University. He is currently in South Africa where he has been invited to address the G20 Interfaith Summit in Cape Town on 12 August.

[1] See Re Blagdon Cemetery [2002] 3 WLR 603, a decision of the Court of Arches, but now declaratory of the legal approach to be adopted in both Provinces of the Church of England, in consequence of the statutory deeming provision in section 14A of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018.

[2] For a recent discussion of the legal concept and some of its modern outworkings, see I Goold, J Herring, L Skene, and K Greasley, ‘Introduction’ in Persons, Parts and Property: How Should We Regulate Human Tissue in the 21^st Century? (Imogen Goold, Jonathan Herring, Loane Skene and Kate Greasley eds Hart 2014) 3.

[3] Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37, [2010] QB 1, 14.

[Cite this article as: Mark Hill, “Repatriation, state funeral and burial: balancing public and family interests following the death of the former President of Zambia” in Law & Religion UK, 10 August 2025]