To say I both like and loathe testimony of politicians — and that of other figures known for their notoriety — at the Zondo Commission, would be the understatement of the century. I have even developed a phobia of exposing my ears to the gibberish that they sometimes spew at the commission, pretending to present credible testimony.

For example, there was a point during the testimony by former minister of Home Affairs Malusi Gigaba that I fell in and out of interest in what was unfolding on national television. The loss of interest was not because he appeared to be spinning a story or what others called a possible web of lies, but because his testimony is riddled with outright denials followed by accusations against his ex-wife. Also, because his testimony at times sounded like that of a respondent in a divorce trial who is trying very hard to influence the division of the joint estate or obviate an order for alimony.

Gigaba, for example, and reminiscent of the old “fault” divorce regime, told the commission that trust is not the biggest asset of his estranged wife Norma Mngoma as she allegedly kept a deep secret from him for over a decade that involved another man. In a salacious account, Gigaba told the commission that when he met Norma, the impression he got was that she was a wealthy woman who inherited a fortune of money and assets from her late father, who lived in New York. But, the truth came out that Norma’s inheritance came from her late fiancé, who lived in South Africa and died in 2010. “She lied to me for over a decade. She concealed this from me,” Gigaba said.

It would seem that lies and deception are at the heart of the Gigaba and Mngoma testimonies before the Commission. Who is lying and who is fooling whom? Who is being deceptive here or embellishing the truth? Will the commission have enough credible evidence to compile a corrective report for the attention of President Cyril Ramaphosa?

I am reminded of the Warren Commission in the United States. President Lyndon B Johnson, by Executive Order No 11130 dated 29 November 1963, established the Warren Commission to investigate the assassination on 22 November 1963, of John Fitzgerald Kennedy, the 35th President of the United States. The terms of the Commission were clear: evaluate all the facts and circumstances surrounding the assassination and the subsequent killing of the alleged assassin and report its findings and conclusions to president Johnson.

In his book, Breach of Trust, Gerald D McKnight sought to debunk the narrative that Lee Harvey Oswald was the lone assassin of president Kennedy. In his view, the Warren Report itself was little more than a capstone to a deceptive and shoddily improvised exercise in public relations.

The terms of reference of the Zondo Commission are widely couched and the commission is clearly instructed to inter alia “inquire into, make findings, report on and make recommendations into allegations of State Capture, corruption and fraud in the public sector including organs of state”.

With denialist testimony such as that of Gigaba and many others that came before the Zondo Commission, what will be the ultimate assessment of the commission’s work? Will the report of the Zondo Commission, like the Warren Report, be a capstone to a deceptive and shoddily improvised exercise in public relations and political survival by those fingered in State Capture? Or will it be the blueprint of accountability?

The majority of high-profile witnesses implicated in State Capture seem not to take the commission seriously. Even a person uninformed about the genesis of the State Capture report by advocate Thuli Madonsela can smell from afar doubt and deception from some of the testimonies. Perhaps one can begin to draft a novel manuscript or a movie script from the Zondo Commission’s happenings with possible titles including: Master Storytellers or Master Deceivers?; Lies They Told Zondo; Pathological Lying, Accusation, and Denials; Manipulative Politicians and Spinsters; South Africa’s Most Successful Conmen and Impostors; Money Bags and Beers at the Saxonwold Shebeen; and The Family that Stole South Africa.  

Or as Greg Nicolson of Daily Maverick recently had it: “The Hunt for Koko”, and which Tswana-speaking people will translate to “The Hunt for Chicken [Koko],” until the correct pronunciation of the surname of Matshela Koko is given as not meaning “koko”, as in chicken.

Many of the critical witnesses at the commission have “mastered the art of creating shadows and taking advantage of the substance”. They portray themselves as Superman and the commission acting as their supermarket. But most importantly, they have created prototypes in the form of men and women of even lesser stature than them hell-bent on emulating their deceptive testimonies at the commission.

Consider the testimony of former Eskom executive Koko, for example, who denied knowingly sending an email to a Gupta-linked email account and doggedly claimed that he thought he was sending confidential documents internally.

Those fingered in grand corruption and alleged to have played a critical role in State Capture allege that everybody but them is lying or presenting to the commission figments of their imaginations. For example, Gigaba has labelled Norma an “accomplished liar”, a “pathological liar”; and an extensive liar with creative imagination.

Gigaba’s testimony comes close to concluding that Norma is suffering from pseudologia fantastica (pathological lying), which can be described as “storytelling tampered with a matrix of fantasy interwoven with some facts”. 

Interestingly, the phrase “pathological liar” was in 2018 used against Gigaba by the EFF’s MP Mbuyiseni Ndlozi: “Minister Gigaba is a pathological liar,” said Ndlozi. In the EFF’s view, at the time, in Gigaba “we are dealing with an unpatriotic pathological liar who is not deserving of public office”, charged Ndlozi. This blistering attack on Gigaba as suffering from pseudologia fantastica came after the Electoral Commission of SA (IEC) confirmed that Atul Gupta was registered to vote in the country — meaning he had a South African ID number and was indeed a citizen, contrary to denials by Gigaba that Ajay and Atul Gupta were granted South African citizenship.

Curiously, and perhaps something that we must pay attention to, it appears to be a trend by those on the receiving end of the Zondo Commission to accuse others of being pathological liars or to use pseudologia fantastica as a defence. For example, Valence Watson, a brother to the late Gavin Watson, rubbished Angelo Agrizzi’s testimony at the commission and called him a known pathological liar: “That pathological liar, sociopath. I mean, the commission knows he’s a pathological liar,” said Valence Watson. This after Agrizzi, the former Bosasa COO, told the Zondo Commission that Gavin Watson had bribed top government officials with bags full of money.

Labelling Norma as a pathological liar is designed to discredit her as a trustworthy witness. Such a label can also be damaging to one’s reputation and credibility. One question must be asked: is it possible that witnesses such as Norma are telling the commission untruths of a particular import as Gigaba is implying? If so, what recourse does the commission have against witnesses lying under oath?

It is concerning that we will have the commission concluding with witnesses who just present themselves before it to deny everything and are emboldened to call others liars without providing tangible evidence to support the assertion that such witnesses are liars. If this was a court proceeding, it would generally not be unethical or impermissible to call a witness a liar or that the witness lied; but a characterisation of a witness as a pathological liar must be supported by the facts, evidence and record.

In the Zondo Commission, for example, several of the counter-testimonies lack enough evidence to dispute witnesses’ credibility. The calmness and the convincing nature of some of the witnesses when they present their evidence before the commission should not be assumed to mean that they are more truthful than the others. The Supreme Court of Appeal in S v Kelly 1980 3 SA 301 (A) 308 cautioned against such a lackadaisical approach to credibility by stating that:

“Demeanour is, at best, a tricky horse to ride. There is no doubt that demeanour — ‘that vague and indefinable factor in estimating a witness’s credibility’ … can be most misleading. The hallmark of a truthful witness is not always a confident and courteous manner or an appearance of frankness and candour. As was stated by Wessels JA in Estate Kaluza v Braeuer… more than half a century ago in this Court: ‘A crafty witness may simulate an honest demeanour and the Judge had often but little before him to enable him to penetrate the armour of a witness who tells a plausible story.’ On the other hand, an honest witness may be shy or nervous by nature, and in the witness box show such hesitation and discomfort as to lead the court into concluding wrongly, that he is not a truthful person.”

“He who permist himself to tell a lie once finds it easy to do it a second and third time, till at length it becomes habitual,” Thomas Jefferson once said.

So far we know that the Commission Act No 8 of 1947 does attach sanctions to falsehoods and lying under oath — though this may not necessarily deter witnesses from lying under oath. In terms of section 6(2) of the act, “Any person who after having been sworn or having made affirmation, gives false evidence before a commission on any matter, knowing such evidence to be false or not knowing or believing it to be true, shall be guilty of an offence and liable on conviction to a fine not exceeding one hundred pounds or to imprisonment for a period not exceeding twelve months, or to both such fine and imprisonment.”

It is time for the commission to flex its muscles as supported by the Commissions Act and punish the pathological liars before it. It must be appreciated that the Zondo Commission’s own Rules (Notice 396 of 2018), in Rule 3.3, provides implicated persons with a fair opportunity to respond to the allegations against them in line with the essential requirements of natural justice, namely the audi alteram partem rule.

That said, such rules should not be used and abused to hide criminality and wrongdoing. DM