The use of the phrase “we went to sleep for 10 years” (on former president Jacob Zuma’s watch) by the outgoing Wits chancellor and former deputy chief justice Dikgang Moseneke, was part commentary and part confession.

The commentary has been widely responded to, the confession not. Moseneke was one of the co-authors of the seminal majority judgment of the Constitutional Court on 17 March 2011, which declared the Hawks an inadequate substitute for the Scorpions. There is nothing sleepy about that.

However, in 2014 when the amendments to the Hawks’ founding legislation were impugned by Hugh Glenister and the Helen Suzman Foundation, the learned judge did seem to slumber.

Having ruled in 2011 that the legislators should make the decision of a reasonable decisionmaker “in the circumstances”, he declined to have any regard to expert evidence of circumstances tendered by Glenister that warned of the grand corruption perpetrated by and on behalf of Zuma.

Instead, he was party to a judgment describing the inclusion of the warnings of corruption by Zuma as “odious political posturing”, not circumstances worthy of taking into account in deciding whether an appropriate law “in the circumstances” had been passed.

Worse still, he could not agree with Justice Edwin Cameron, his co-author of the 2011 judgment, as to its precise meaning, and they found themselves on opposite sides in adjudicating the meaning of what they had said together in 2011. Cameron was not the one asleep in 2014.

It is going to take a Herculean effort to correct the consequences of the sleepiness of the former deputy chief justice and those of his colleagues who sided with him in refusing to acknowledge the relevance of early evidence of state capture tendered to them in 2014. It is heartening to learn that Moseneke now acknowledges sleepiness.

Paul Hoffman SC
Director, Accountability Now 

Letter published in Bdlive on 4 December 2018.