What if President Jacob Zuma appointed Western Cape Judge President John Hlophe chief justice? Would that mean the end of the rule of law as we know it and would it mean that we should all pack up and leave for London, Perth and Botswana?
What is the gravity of the matter in light of the life-and-death battle between Hlophe, in his bid for the chief justice post, and those university professors, judges and media commentators who are bent on stopping him?
This issue has disproportionately consumed our public space and I’m starting to wonder if we are supposed to view it as an important debate, or panic, or take positions in defence of the independence of our judiciary.
It is clear that those who support Hlophe equate his appointment as chief justice with real transformation of the judiciary, whereas those opposed to it view its equivalent to the collapse of our legal foundation and a descent into a banana republic.
So we have to choose between Hlophe and the independence of our judiciary, they say.
Given Hlophe’s acceptance of an allowance to form a private company, the accusation that he tried to interfere in a judicial ruling for Zuma, and the stinging criticism he has received from both the Supreme Court of Appeal and the Constitutional Court when they overturned judgments of his, there are certainly valid questions about whether he makes a good judge, let alone whether he would be a good chief justice.
But I ask: is the blind obsession with Hlophe beneficial to us all?
Is Hlophe the real deal, or a scarecrow whose defeat could result in a Pyrrhic victory? Is it possible that although some are consumed with throwing mud at Hlophe, more damage could be inflicted on the independence of our judiciary? And could an even worse candidate for chief justice emerge while all energies are focused on Hlophe?
In football we often talk of a goal being scored from the blind side of the defender. I think the battle we should all join is to fight for the judiciary to transform itself so that there is no scope for politicians — most of whom crave opportunities to control all aspects of our lives — to meddle. And it is up to the legal fraternity to keep or surrender control of their affairs to the politicians.
Grooming young men and women committed to the values of the Constitution, to well-researched judgments, to independence and to a love for justice will make it natural that they are appointed to the highest office and that the rotten apples automatically fall away.
I don’t know if a dirty battle with Hlophe is the way to go.
We should hang our heads in shame when our learned friends in the legal fraternity start invoking the fact that a judge did not participate in the liberation struggle to disqualify him from a seat in the highest court in the land. Or when, in response, Hlophe supporters boast that he attended a school started by ANC founding president Reverend John Dube!
Like everyone else, I believe our judiciary is under threat when judges are labelled reactionary and counter-revolutionary by leaders in society. But we should not cry fire in a crowded cinema.