“Judge afwile ukulya: The Pretoria High Court’s sham ruling against the Lungu family
By Thandiwe Ketiš Ngoma
THE latest ruling delivered by the Pretoria High Court in which they denied the Lungu family leave to appeal against its earlier decision ordering the repatriation of the remains of the late former President Edgar Lungu to Zambia is not justice. It is a scandal and meticulously stage-managed judgment designed to rubber-stamp the earlier equally defective ruling by the same court. The reasoning of the court is riddled with legal misrepresentations, contradictions, and procedural irregularities that cannot withstand proper scrutiny.
The court claimed to rely on a so-called Kaunda decision as precedent. This argument is fundamentally flawed for two key reasons. First, at the time of his death, Kenneth Kaunda still enjoyed all benefits accorded to former presidents by law, including state-funded funeral expenses. This was not the case Lungu who forfeited his benefits the moment he rejoined active politics. Second, the “decision” in the Kaunda matter cannot serve as precedent. It was merely a refusal by the High Court to grant leave for judicial review of the government’s unilateral decision to bury Kaunda at Embassy Park against the wishes of his family. No trial took place and no substantive ruling was ever made. And only one party to the case appeared before the court. To invoke this as legal authority in the Lungu matter is a distortion of the law and a transparent attempt to cloak bias as judicial precedent.
To recap, prior to his death, Zambia’s founding President Kenneth Kaunda expressed his wish to be buried on his property in the State Lodge area of Lusaka, alongside his late wife, Betty Kaunda. After his passing in June 2021, his family sought to honor this wish. The Zambian State, however, represented by the Secretary to Cabinet, unilaterally directed that Kaunda be buried at Embassy Park on 7 July 2021. In response, the Kaunda family, represented by Kaweche Kaunda, filed an urgent application seeking leave to commence judicial review, arguing that the State’s action lacked legal authority and that the remains should be released for burial according to Kaunda’s wishes.
High Court Judge Wilfred Muma sat on this urgent application until after the burial had occurred. He then ruled that the family had not made a compelling case that would warrant the trial of the case and refused to grant leave for judicial review. Importantly, because the government’s decision was never substantively reviewed, this outcome cannot be relied upon as precedent to justify State action in the Lungu matter.
Equally concerning is the court’s distortion of South African constitutional principles. Every person within South Africa, whether a citizen, permanent resident, tourist, or short-term visitor, is entitled to the full protection of the Constitution and the law. By implying otherwise, the court misrepresented constitutional guarantees, violated the equality clause, and undermined the very principle of constitutional supremacy.
The judgment also misrepresented Zambian law. There is no statute prescribing how former presidents must be buried. The court’s reliance on the notion that Zambia has legal authority over Lungu’s burial is entirely baseless. This distortion appears designed solely to transfer control of his remains to the Zambian State, irrespective of the applicable legal framework.
Compounding these issues is the court’s designation of Attorney General Mulilo Kabesha as an expert on Zambian law. Kabesha is a party to the proceedings and, by definition, cannot serve as an independent witness. Yet the judges presented him as an expert witness. This procedural irregularity effectively allowed the court to argue the government’s case on its behalf, rather than permitting the government’s legal representatives to present it.
There is a well-established procedure for admitting expert witnesses. Parties must apply to the court, the expert must testify under oath, and the witness must be subject to cross-examination. None of these steps were observed in the Lungu case. The government had originally listed Mutemwa Mutemwa as the expert witness, yet he was never called to testify or be cross-examined. Replacing him with Kabesha, despite his partisan role, constitutes a blatant violation of procedure and further undermines both the impartiality of the judges and the credibility of the judgement itself.
Furthermore, South African law does not prescribe formal procedures for repatriating deceased persons to their countries of origin. The court ignored this reality and substituted political reasoning disguised as legal argument, producing an outcome that was predetermined from the outset. Where the family and the government had agreed that the family would transport the body to Zambia using a private aircraft, the court ordered that the body be given to the Zambian high commission in Pretoria. Here, we see how the judges that Robert Chabinga had branded as bribable went out of their way to deliver the body to the government.
From start to finish, this judgment in the appeal case was designed to justify the judges’ initial decision. If the judges had the capacity to recognise the scale of the poverty of their reasoning, they would not have made such a poor decision in the main matter. Allowing the Lungu family leave to appeal to a superior court risked exposing the judges’ incompetence. This explains why the Lungu family was denied the leave to apply. If the judges were confident of the soundness of their decision, they would have allowed the appeal to proceed since the superior courts would have arrived at the same conclusion. But the judges could not take the risk, for fear of being embarrassed. They even imposed costs on the family as way of dissuading them from appealing against their defective ruling. By prioritising political expediency over constitutional principles and the rule of law, the Pretoria High Court has exposed itself as a court willing to compromise justice for political convenience.
The manipulation of expert testimony, the misrepresentation of both Zambian and South African law, and the disregard for proper procedure reveal a court more interested in serving political interests than in delivering justice. The Lungu family, and all those who value the rule of law, deserve better. This judgment is not justice. It is fixed and fundamentally flawed. Chabinga, who revealed that he was sponsored to do what he did in South Africa by Hichilema, clearly knew the judges when he declared that “Judge afwile ukulya”! It is no wonder the Zambian government refused to distance itself from his comments. Whatever incentive the judges received from Chabinga must have been higher than the oath they took to dispense justice!
