President Jacob Zuma's failure to appoint permanent leaders at the National Prosecuting Authority (NPA) and Special Investigating Unit (SIU) for more than 15 months has left important bodies within the criminal justice system rudderless.
This is the sobering view of legal analysts and opposition parties alike that claim the president's hesitancy is permanently blighting the country's ability to fight crime and corruption.
Since December 2011 advocate Nomgcobo Jiba has been acting as national director of public prosecutions of the NPA and advocate Nomvula Mokhatla has filled the post of acting head of the SIU.
Jiba was brought in after her predecessor, Menzi Simelane, was removed from office by the Supreme Court of Appeal. Mokhatla was brought into the SIU after Judge Willem Heath resigned as its head after only 17 days in office.
Both Jiba and Mokhatla are legally permitted to act in their positions as deputy directors of the NPA and SIU respectively, but their tenures became controversial.
Under Jiba's watch, the NPA ran into legal woes regarding Zuma's corruption trial and she was lambasted for suspending anti-corruption prosecutor Glynnis Breytenbach. During her term the prosecuting body also ran short of money to fund Legal Aid.
With Mokhatla at the helm, the SIU also had its fair share of problems.
Spat with union
The unit became embroiled in a public spat with National Education, Health and Allied Workers' Union over the appointment of staff. The SIU also ended a contract that guaranteed auditing expertise in their investigations.
Zuma announced in his State of the Nation address in February that he would ensure "all vacant posts at the upper echelons of the criminal justice system" were filled in order to bolster the fight against crime and corruption.
But over a month later, the president still has not permanently filled the posts, which have been vacant for over a year.
"Acting appointments are problematic for practical as well as principled reasons," Pierre de Vos, constitutional expert at the University of Cape Town said.
"Practically, an acting head might not have the necessary authority or security to make sound judgments as the person does not know how long he or she will be there."
De Vos said the independence of the NPA was severely affected by a long-acting appointment.
"This is because the security of tenure guaranteed for the NDPP protects the director against possible political interference," he added. "Where a person is not appointed for a fixed term they may be perceived as [being unprotected] and would make decisions to secure the permanent job instead of making decisions without fear, favour or prejudice."
Under close scrutiny
On the question of independence, David Bruce – senior researcher in the criminal justice programme at the Centre for the Study of Violence and Reconciliation – said Zuma's dawdling has led to the impression that the state wanted to keep South Africa's criminal investigations under close scrutiny.
"The suspicion is that a problem has arisen in having two sets of criteria in their chosen appointments that [are] blatantly incompatible," Bruce said.
"Publicly you need someone with demonstrable integrity to appease the legal fraternity, while at the same time being politically pliable enough to ward off senior people within government, who themselves are implicated in serious crime and corruption."
Bruce's sentiment on the independence of prospective candidates was reiterated by De Vos.
"Inevitably a perception would arise that the positions are left open for such a long time to erode the independence of these bodies as an acting appointment does not enjoy the security that would allow a person to act fearlessly and to resist any political interference," De Vos said.
But expecting an appointment that was above reproach – both legally and politically – would be foolhardy with South Africa's recent public prosecution history in mind.
It could even be argued the last time a truly independent National Director of Public Prosecutions was in place, he was dismissed for his troubles.
Former president Thabo Mbeki suspended then National Director of Public Prosecutions Vusi Pikoli in 2007 citing a breakdown in relations between Pikoli and then justice minister Brigitte Mabandla. Pikoli's suspension was linked to Mbeki's alleged reluctance to prevent the prosecution of former national police commissioner Jackie Selebi over corruption.
Independent appointments
Pikoli was not reinstated in his position even though the Ginwala commission of inquiry cleared him of any wrongdoing and was then removed from his position permanently by interim president Kgalema Motlanthe in 2008.
Democratic Alliance spokesperson for justice Dene Smuts suggested the president might have a couple of names on the shortlist for the temporary positions, but could be dragging his feet until a favourable candidate came along.
"The justice ministry has sent him names. Perhaps he doesn't like the names, while he likes the present situation just fine and so he delays," she added.
Smuts argued that Parliament should appoint high level positions within the justice cluster independently from the president.
"I propose the president simply signs off our recommendation and has no discretion precisely as we appoint the Chapter Nines under section 193 of the Constitution."
South African law does not dictate the specific time period in which appointments must be made and section 10 of the NPA Act only states the president was obligated to appoint a national director of public prosecutions.
Vacancies within NPA
Over the course of a fortnight, presidential spokesperson Mac Maharaj did not respond to several requests – both telephonic and written – for comment on the issue of vacancies within the NPA.
Maharaj refused to be drawn into speculating on when or who the president would appoint to these positions.
"I've passed on your request but I have as of yet received nothing and won't be commenting," he said.