The recent announcement by the Hawks that the inquiry into the arms deal was finally to be closed was greeted more with a whimper than a howl of protest.

The arms deal arguably represented the commencement of the journey along a slippery road towards corruption and away from the principles of integrity and transparency in the governing of a democratic South Africa.

The Guardian observed on October 15 2010 that the decision by the Hawks branch of the police, which replaced the Scorpions as a specialist investigation unit, means that no longer will allegations be investigated that Chippy Shaik, then the head of defence procurement, negotiated a $3-million bribe with one of the companies in the German consortium which sold South Africa corvettes, or that Fana Hlongwane, adviser to then defence minister Joe Modise, received about R250-­million in payments.

Sadly, save for the Mail & Guardian, the initial media response is best classified as disturbingly tepid.

A decade of inquiry and investigation which involved the auditor general of the public protector, the Scorpions and the courts is now over.

In short, notwithstanding a body of evidence that has been built up over years and compelling allegations made by ex-ANC MP Andrew Feinstein, the spokesperson for the Hawks, Musa Zondi, could conclude rather blandly "the main reason was that the investigation has not yielded any evidence that the prosecuting team finds useful".

Even the chair of the standing committee on public accounts (Scopa), Themba Godi, was surprised by this announcement, particularly because it appears that Scopa was under the impression that further negotiations were taking place with foreign authorities to procure additional information, which may have strengthened the state's case to initiate prosecutions.

It is important to recall the last judicial pronouncement on this matter. Judge Chris Nicholson, in his judgment in Zuma v The NDPP, said the following:
"It would be naive to suggest that the allegations concerning corruption relating to the arms deal will have ceased or diminished in intensity. They purport to involve very senior figures in government from the president (Thabo Mbeki) downwards…

Only a commission of inquiry can properly rid our nation of this cancer that is devouring the body politic and reputation for integrity built up so assiduously after the fall of apartheid.

If the allegations made by Ms [Patricia] De Lille and a group of courageous journalists are true, then there is no better reason for a commission to probe this corruption."

The order of Judge Nicholson, that the decision taken by the National Director of Public Prosecutions to prosecute Jacob Zuma was invalid, was set aside by the Supreme Court of Appeal in an unprecedented and brutal judicial rebuke.

However, there remains a considered opinion by a judge that, at the very least, a commission of inquiry is needed to rid South Africa of "this cancer that's devouring the body politic".

The decision to kill the investigation confirms the fear of many that once the Scorpions were replaced by the Hawks criminal investigations which might implicate influential political figures would no longer be pursued with any vigour or success.

The Hawks' announcement illustrates the importance of institutional capture: bodies that should operate independently and be immune from political interference are captured by the hegemonic group in the ruling party and are then shaped to ensure immunity from official action which could compromise the ruling elite.

A similar process may be taking place with regard to the media. We are now told that, if the internal mechanisms which render the press accountable to a principle of responsible reporting are strengthened, legislative intervention, and hence the creation of a statutory media tribunal, may not be required.

This is reflective of a style of government perfected by the National Party.

Government threatened draconian legislation pursuant to the Steyn Commission of Inquiry. It then suggested to the press that it get "its own house in order" if it wished to prevent further legislative control. The mainstream press then reported far more cautiously and the government's objective was -- fulfilled.

Will the response to the media tribunal be that the mainstream media will be far more cautious in publishing allegations of official corruption in the future?

There are certainly grounds for apprehension that another form of institutional capture is at least partly under way at present.

Absent vigorous and courageous reporting, as noted by Judge Nicholson in his judgment, the arms deal scandal would have long died a death in the public discourse. That it has remained so long on the agenda is a tribute to the media.

A far more cautious approach by the media is not just disconcerting. Bold coverage goes to the very heart of the open and transparent government that was envisaged in the Constitution.

The almost unsubstantiated statements by the Hawks that there is no point in continuing the inquiry should not have been met with silence.

Rather, it should be seen as a clarion warning of the dangers of a capture of key elements of society, which are necessary for the survival of a vibrant, open and transparent democracy. -- Guardian News & Media 2010

With acknowledgements to Serjeant at the Bar and Mail and Guardian.