In litigation as in war, a loss can be a victory depending on the end game of the litigation or war
By Professor Munyonzwe Hamalengwa
IN LITIGATION as in war, a loss in a motion or at one level of court or in a battle respectively, can be a victory depending on the end game of litigation or war. There are many purposes for litigation and or war and some of the purposes may not necessarily be to secure the ultimate victory but to achieve certain objectives short of ultimate zero-sum victory.
When a person or entity initiates litigation or war, they at that point may lose the narrative of the litigation or war because the attacked person or entity develop their own end game on how the litigation or war will escalate or de-escalate. The latter become vested in their own end game and objectives.
In this amalgam of different objectives and end games, a setback in a motion or at one level of court or one battle does not necessarily mean a defeat. It can be a significant victory on the losing party when they survive that loss and continue on fighting and continue generating headlines and teaching the other person or entity or when it becomes clear that the losing person or entity has other objectives in the battle than mere ultimate victory. You have heard the saying of “losing the battle but winning the war”. Sometimes losses and victories are intangible. They are not measurable.
In terms of litigation, Marc Gallant has written widely on the many objectives of Litigation whether of a proactive or reactive nature. Others have written as well on this topic in matters of war, a Chinese general Szu has written on this in his book, “The Art of War”.
Let me throw in a series of random examples from litigation and war to make my point that a loss can be a victory depending on the end game of the litigation or war and depending on who seizes advantage of the litigation or war no matter who started it.
What is being written here is applicable to many theoretical and or practical situations including the unfortunate litigation in South Africa in mid 2025 involving the place of burial of the late President Edgar Chagwa Lungu.
That case is a teachable moment on the topic at hand here. What is the end game of that Litigation? Let me jump to speculate on the end game of that litigation regardless of how it was started and how it was reacted to. Every lawyer worth his or her salt knows how that litigation will end even though one may not have read Marc Gallant on the many objectives of Litigation and reaction to litigation.
One side has perhaps already achieved its objectives regardless of how the litigation ends. Can that objective(s) if achieved be called a loss? Here the reader can decipher for themselves what the objectives of this litigation were or are through reading the various affidavits that were filed in various courts and the voluminous media statements that have been issued since the former president died on June 5, 2025.
Let me get back to the random statements that I promised above to demonstrate that a loss on one chain link or links in litigation or war can be a victory depending on the end game.
During the trial of the 20th Century in the famous or infamous OJ Simpson case in the United States, OJ Simpson lost almost every motion he made during the trial but but ultimately was acquitted of the crime of murder of his wife and her friend.
In those motions, OJ revealed his end game and chipped away slowly (though losing) at the weaknesses of the state’s evidence against him. By winning the motions, the state was emboldened that they had Simpson on the ropes and the entire US thought Simpson would be convicted. He wasn’t. A loss can be a stepping stone to victory or to achieving fundamental objectives.
Donald Trump taught the world the same exact example as OJ Simpson. . He lost almost every motion he made during his many trials including being convicted on 34 felony counts but he ultimately won the end game that he designed in reaction to the many trials and tribulations that were facing him.
Many people including myself thought that Trump’s exposure to the many trials he was facing would detail his presidency in addition to his utter unsuitability to be a president of anything let alone the Presidency of the United States of America but there he is; president of the United States, warts and all. A loss could result in ultimate victory depending on the end game.
Like the litigation involving Lungu, the litigation involving OJ Simpson and Donald Trump were started by the states. Now here I am not suggesting that the Lungu case will end in exactly the same manner as the OJ Simpson and Donald Trump cases.
My point here is to interrogate whether the Lungu family may not have already achieved some of their major objectives in this litigation. What these objectives may be are up to you to surmise.
You have read the affidavits and what do you think are the numerous objectives laid out in there? At the end of this litigation do you think the Zambian government will treat the Lungu family in the same way as they treated them before the litigation?
Maybe the contents of the objectives reside in engineering different treatment if the Lungu family after the litigation. Maybe the objective whatever it is, is aimed at the South African government. Or the international community. Or the Zambian domestic political constituency. Think very hard on this issue and you will come to the conclusion that maybe the Lungu family has already achieved their ultimate end game through this litigation no matter what the outcome of the litigation maybe. Marc Gallant is a master in writing on the different objectives of litigation.
A loss could be a victory in litigation and or in war.
If War is the continuation of politics by other means, so is litigation in the Lungu case or most other constitutional cases, litigation as the continuation of politics by other means.
The Lungu case is the ultimate example of the continuation of Zambian politics and its criminal justice nexus in the South African courtrooms. This politics is playing out in South Africa exactly in the same manner as it would play out on Zambian soil.
The Lungu litigation is the continuation of politics per excellence. The politics are being played out by one side through the theatre of the courtroom. The narrative has been flipped and taken over by one side from the initial objectives of the initiators of the original litigation.
You will recall also that for the African National Congress (ANC) party, Nelson Mandela became more useful in jail than outside jail, so is Lungu maybe more useful in litigation than out of litigation, he may be more useful being in South Africa in a coffin than in Zambia laid to rest at Embassy Park.
This is how disgusting this litigation as the continuation of politics by other means has become to mean for most Zambians. Can you imagine that no Zambian media outlet has taken a pole on this topic.
The Lungu litigation is like the Hamas attacks on and taking of hostages from Israel on October 7, 2023. Hamas had limited objectives but Israeli reaction rewrote the script and imposed its own end game and objectives. Hamas never thought that its limited objectives on October 7, 2023 would leave Gaza in ruins and irretrievable. Israeli loss on October 7, 2023 would lead to ultimate victory later on, on some major objectives. I am not saying this is what will happen in Zambia.
I am writing about the unknown hazards and uncertainties of litigation or war. The narrative can be yanked out from the limited objectives and end game of the initiator. Â A loss could lead to ultimate victory. Rather a loss could be a stepping stone to victory on some objectives or entire end game for one of the contending parties.
The Russia-Ukraine war could be looked through the same lenses. That war is a continuation of politics by other means and one side or both sides are achieving their objectives depending on the end game but neither side could have predicted that the narratives of the war would continuously be rewritten on the ground and on the world stage.
The jury is still out on who will be the ultimate victor in the war of the continuation of politics by other means in Russia-Ukraine War.
There is as well a saying that you should not play with a pig in the mud because even when you win the war the pig would have dragged you through the mud and for the pig that is victory.
The pig has managed to drag you in the mud n matter who initiated the mad wrestling. Always pay attention to the end game of each litigation or war and the collateral losses or victories engendered in the course of that Litigation or War. Is the objective to win or to make a point?
The strategies differ depending on whether the aim is to win or to teach and or make a point regardless of the outcome. Sometimes making a strong point that teaches someone a lesson maybe more important than victory. Where does the Lungu litigation in South Africa for both sides fit in here? What is the end game?
What are the objectives? Who has achieved what objectives? At what expense? At whose expense? Will the political balance of power between the two sides remain the same at the end as it was before the contest? Whose narrative is dominant? Who has dragged who through the mud regardless of the outcome? Should Zambia be put through this international shame of extraterritorial litigation when customary law supported by developing legal precedent in both Zambia and South Africa that dead Zambian presidents should be buried at Embassy Park or repatriated to Zambia and that is where five out of six dead presidents have been buried in sixty years of Zambia’s independence?
Mahatma Gandhi never wanted to go to court in civil matters and stated that going to court is a failure in human communications. He preferred alternative dispute resolution mechanisms over courtroom litigation. See Mahatma Gandhi “Law and Lawyers”. It is not too late to listen to the admonition of Mahatma Gandhi when it comes to the Lungu litigation. The South African politicians and courts of law have similarly hinted at alternative dispute resolution outcome in the Lungu case. We are tired of the continuation of politics through litigation in the Lungu case. We know the objectives and we know the end game. Cut the losses which will never result into victories. This I predict will not follow the OJ Simpson and Donald Trump precedents of losses resulting into victories. Bring the end game to the end. Now.
Professor Munyonzwe Hamalengwa teaches Law of Evidence, Clinical Legal Education and Criminal Law at Zambian Open University where he is the Dean of the School of Law.
