A previous ruling had granted the government permission to repatriate Edgar Lungu's body from South Africa against his family's wishes

South Africa's Supreme Court of Appeal has granted the family of former Zambian President Edgar Lungu the right to appeal a previous ruling that cleared the way for the government to repatriate his body for burial.

The legal tussle over his body has been dragging on for the past six months. It is not clear when he will eventually be laid to rest as no date has yet been set for the SCA appeal. The body, meanwhile, still remains in South Africa.

The Gauteng High Court, Pretoria, ruled in August that Lungu's body must be released for repatriation to his home country of Zambia, for burial in a state funeral.

"The court in this case concluded that the government of Zambia is entitled to proceed with the state funeral for the late president of Zambia," Deputy Judge President Aubrey Ledwaba said at the time.

The family members were ordered to surrender the body of the former president to representatives of the Zambian government to enable repatriation. They wanted him privately buried in South Africa, citing his wishes to avoid government involvement. Lungu died in June after receiving medical treatment at a Pretoria hospital.

READ MORE: Zambia wins case to bury former president

The high court supported the Zambian government's wishes that Lungu be buried in that country, as per protocol of a former head of state.

The situation remains unresolved, as the family is trying their best to appeal the ruling. After suffering two defeats in the high court - losing the main application for him to be buried here and a subsequent application for leave to appeal - they directly turned to the SCA.

Apart from turning down their appeal bid, the high court in September also saddled the family with the legal costs.

The appeal court on Tuesday issued a short order, in which it not only granted leave to appeal, but it also set aside the costs order. The court, however, said if the family did not go ahead with the appeal, they will have to abide by the high court's cost order.

In their application, the Lungu family held that the matter raised important legal questions which must be ventilated further. However, the high court rejected these claims, stating that there were no reasonable prospects of success in their appeal.

Three judges, led by Judge Ledwaba, said: "The court considered that the deceased was on a temporary visit to the Republic for medical reasons. The argument that the deceased was stripped of his benefits is of no moment. He remains a former state president with attendant burial benefits at state expense upon death."

The judge added that conflicts and disagreements about burial rights are a common feature in our courts. He found that there were no compelling reasons to grant leave to appeal because the matter is so fact-specific that there is very little to no prospects that the same set of facts will confront a court again.

The original judgment issued in August, ordering the repatriation of his body, followed an urgent application after plans came to light that the family wanted to bury him here.

The ruling was delivered just moments before a private ceremony was set to commence in Gauteng.

The Lungu family has firmly held that the former president's dying wishes were that his successor and political nemesis, Zambian President Hakainde Hichilema, should not be involved in his burial.

First published by IOL