The Gap Between Investigation and Enforcement
A wise person once said, “Never confuse motion with action.” I’m sadly reminded of this far too often when I look at South Africa’s recent past.
We all know our country loves a good commission of inquiry. It’s our default response to pretty much anything. Public outcry over a lack of service delivery? No problem, we’re forming a commission to investigate.
Forensic audits revealing local government fraud? Excellent – our newly created commission is looking into it.
But that’s about as far as we go. Time, effort and eye-watering amounts of money are spent on commissions of inquiry and then…crickets. Regardless of the outcomes of these commissions – many of which highlight significant areas of concern, and often point out the exact individuals responsible – nothing further gets done.
There is motion, but no action.
MK Masoma LLB, a legal practitioner based in Polokwane, wrote an article in DeRebus entitled, “Investigating without consequence: A critical review of South Africa’s commissions of inquiry.” In it, he says, “Since 1994, [South Africa] has convened numerous commissions, [but] despite producing detailed reports and exposing serious wrongdoing, [they] have achieved limited or no success in holding perpetrators accountable. In virtually every case, no individual faced meaningful legal consequences, highlighting the persistent gap between investigation and enforcement.”
He goes on to cite these damning statistics:
The 2012 Marikana Commission investigated the police killing of 34 miners, cost R153 million, and took over two years. No individual faced legal consequences.
The Life Esidimeni Inquest examined the deaths of 144 psychiatric patients, incurred multi-million-rand costs, but resulted in no direct criminal accountability for the deaths.
The Zondo Commission on State Capture spanned 430 hearing days, filled 16 volumes with findings, and cost nearly R1 billion. Yet despite exposing extensive corruption, there has been very little progress into concrete prosecutions.
This pattern is the rule, not the exception, and it’s systemic across our most of our municipalities and state entities.
Massive costs, significant public investment, months of extensive investigation and revelations that leave us reeling. Then the process simply curls up and dies. The consequences for those responsible are negligible at best.
This isn’t accidental paralysis; it is a calculated failure that rewards criminal enterprise.
It is, as Masoma describes, “spectacle without justice; a gap between discovery and justice that fuels public cynicism and erodes institutional trust.”
The irony is, most inquiries are convened by respected judges (serving or retired), which gives them an air of authenticity and gravitas. Yet any results delivered don’t actually carry any significant weight – they’re merely suggestions or recommendations, and are not legally binding.
Meaning the government is under absolutely no obligation to act on the findings.
As Masoma says, “they placate public outcry while insulating political elites and failing to hold wrongdoers accountable.”
Of course, occasionally, there are flutters of apparent action – implicated officials are suspended, for example. But a short while later, they’re quietly unsuspended. Sometimes there are murmurings about arrests and trials, but nothing further actually happens.
The more cynical amongst us might argue that commissions of inquiry are wonderful insurance policies for the powers that be. Box-ticking, cover-your-a$$ exercises that can be enthusiastically waved in anyone’s face if they dare to bring up an incident of fraud or corruption that has yet to be addressed.
“Ah, but we held a commission into that…”
If the worst result of these farcical exercises in futility was that they gave South Africans something else to moan about over their morning coffees, that would be one thing.
But the consequences of this blatant middle finger waving and general couldn’t-give-a-crappery are far more serious:
Exposure without consequence enables more corruption.
When wrongdoing goes unpunished, even when we have irrefutable proof of who the bad guys are and what they’ve done, there is absolutely no incentive for them to stop doing it.
It breaks my heart to admit it, but it’s obvious South Africa has no concept of consequence management – the vital step that connects a forensic finding to a disciplinary outcome or criminal charge.
There are three key factors at play:
Implicated officials are frequently political appointees, protected by powerful patrons. Disciplining them is seen as political disloyalty instead of good governance.
Internal systems are often compromised, with those appointed to manage disciplinary processes frequently also those who benefit from the system they’re being asked to police.
The non-punishment of the corrupt quietly and softly erodes the moral will of honest professionals. The message is clear: Integrity is a career-limiting move.
So, does all of this mean commissions of inquiry are ineffective blunt instruments we should consign to the scrap heap?
Not at all.
They simply need to evolve from, in Masoma’s words, “instruments of spectacle into vehicles of accountability.”
He suggests this could be achieved by:
Making it a legal requirement for the President or relevant executive authority to table a formal response to commission reports within a fixed timeframe, outlining the recommendations to be implemented.
Legally obligating the National Prosecuting Authority and Special Investigating Unit to assess referrals and publish progress reports, again within a defined period.
Creating an independent parliamentary oversight mechanism – a dedicated, multi-party committee – to monitor the implementation of recommendations, ensuring sustained scrutiny beyond the initial report.
I would love to see this happen.
My team and I have always had a certain clinical expectation: the truth, no matter how complex the fraud or how high the official, will eventually, inevitably, surface.
But in South Africa today, that expectation has curdled into despair. No matter what we do, or how well we do it, is it ever enough to make a long-term, sustainable, and meaningful difference?
From where we sit, the true crisis killing service delivery in South Africa is not corruption, it’s the deliberate failure to act once the truth is known.
When the game is this rigged and integrity this optional, the rules MUST change or we’re all going to lose.