THE storm surrounding the nomination of Justice Mogoeng Mogoeng as President Jacob Zuma's preferred candidate to be the next chief justice symbolises the destruction of the crucial cornerstone of our democracy - the judiciary.

In terms of section 174(3) of the Constitution, the power to appoint a chief justice resides exclusively with the president. However, the Constitution requires the president to consult with the Judicial Service Commission and leaders of all opposition parties who are represented in the National Assembly.

Such consultation is merely to allow a formal noting and exchange, not necessarily an interview, of the agreed essentials to satisfy the consultation process.

So it is incorrect and misleading for Paul Hoffman of the Institute for Accountability in Southern Africa to suggest that Zuma was not supposed to have raised his nominee ahead of the consultation process.

It is of concern that the nomination of Judge Mogoeng seems to have created an opportunity for the integrity of the judiciary, particularly that of Judge Mogoeng, and that of Zuma to be unfairly undermined.

Our Constitution affords an opportunity for our democracy to unfold its expressions and contradictions in a transparent and acceptable manner. Judge Dikgang Moseneke is undoubtedly an influential jurist and leader and the issue should not be about Judge Moseneke.

The issue is that Zuma has adhered to the law and has made his choice.

We should not therefore allow ourselves to be distracted from appreciating the merits of the present nominee, Justice Mogoeng.

The Constitutional Court has epitomised modern constitutional law and has developed jurisprudence that gave judges virtually unlimited discretion to resolve cases according to what seemed fair to them.

The court has done a great deal of good in the protection of the socio economic rights to housing and the granting of access to HIV medi-cation and so forth.

The bad occurred when the Constitutional Court ruled that Robert McBride, a former liberation struggle fighter, cannot succeed on a defamation claim for being called a murderer as a result of his role in Struggle activities.

The ugly came about when the judges lost the moral high ground and judicial decorum when they dragged Western Cape Judge President John Hlophe through the mud, and when they fiercely rebuked their colleague and former Chief Justice Sandile Ngcobo even when Justice Ngcobo had publicly said he would retire as chief justice.

It was really disappointing to witness what appeared to be a frenzy by Constitutional Court judges to get rid of Judge Ngcobo.

We should be careful that the culture of throwing stones and burning of government buildings, the trashing of streets with refuse by striking workers and disruption of learning and pulling of drips from terminally ill patients in hospital's intensive care units by striking teachers and nurses, respectively, is not to be emulated by our judges.

Justice Mogoeng would probably provide a different insight into our constitutional development as the current trend is disturbing.

It is a given that Justice Mogoeng is not a senior judge. But his intellectual pedigree and almost similar ideological profile as his colleagues will embolden him to be at the forefront of the transformation of the judiciary through his new office of chief justice.

Nothing turns on the fact that Zuma's nominee is not a senior judge as there is abundant precedence that demonstrates that the competency of such persons has never been an issue.

It is also disturbing that Zuma is consistently being treated with derision and scepticism that is inexplicably accorded to ANC politicians by the likes of Hoffman.

Whatever general merits such scepticism might have, it should have no place in the interpretation and application of the provisions of the Constitution.

It is therefore of great concern that the Constitutional Court is seen to have been infiltrated by this unsubstantiated scepticism.

It is unacceptable for Paul Hoffman to deliberately mislead the public when he says the president does not have a constitutional right to raise his nominee before consulting the JSC and opposition parties.

Actually, Hoffman's conduct may negatively affect public confidence and perception of the judiciary.

This might eventually undermine the rule of law that he purports to protect as Hoffman gives the impression that the law can be interpreted to advance an anti-Zuma agenda.

Hoffman's interpretation of the Constitution yields this unjustified conclusion, which can best be described as anti-transformation.

I have confidence in the independence of our judiciary as it is uniquely positioned to ensure that the confidence of the public is not manipulated through falsehood.

The public should not be misled to believe that a "legal debacle" would result from the president's nomination as the judiciary knows that it has no right to second guess or substitute the president's nomination.

For Hoffman to threaten to "sue" the president over the nomination is to essentially presume that the Constitutional Court can be used to "destabilise" our democracy over a matter that is firmly at the discretion of the president.

We should embrace the notion that judicial independence is not equal to judicial supremacy over Parliament or the president.

- The writer is a senior partner at Langa Attorneys