Advocacy: AmaB approaches Nugent on Sars using tax law against journalists

The amaBhungane Centre for Investigative Journalism has made a submission to the Nugent Commission of Inquiry into tax administration and governance at the South African Revenue Service (Sars).

This is in response to one of the commission’s terms of reference: “Whether any legal proceedings or complaints instituted by Sars against … the media or any other person for reasons that do not relate to their tax affairs were instituted for reasons that are rational and in the best interest of Sars,”

In 2016, Sars, its commissioner, Tom Moyane, and acting chief operations officer, Jonas Makwakwa, brought defamation proceedings against two amaBhungane reporters and the Mail & Guardian.

AmaBhungane argues this was neither rational nor in the best interests of the public or Sars.

Read the Nugent Commission Terms of Reference and amaBhungane’s full submission

The Sars suit related to an amaBhungane exposé, “Sars wars: Moyane’s empire strikes back”, which the M&G published in 2016. Its authors, Sam Sole and Craig McKune, were cited as defendants alongside the paper.

The story reported on allegations made by senior Sars insiders against Moyane, Makwakwa and Sars.

In their suit, Moyane and Makwakwa sought R1-million in damages each while Sars claimed it had suffered damages worth R2-million.

They further claimed that the reporters and the newspaper committed a criminal offence, breaching section 67(3) of the Tax Administration Act (TAA), by disclosing Sars and taxpayer confidential information.

In May this year, more than two years after they launched their suit and shortly after Moyane was suspended as commissioner, Moyane and Sars withdrew their claims.

Makwakwa has not.

In the course of the Sars suit, then-finance minister Pravin Gordhan filed papers effectively contradicting Sars.

He stated: “Section 67(3) of the TAA, read with the definition of ‘Sars confidential information’, protects the legitimate governmental purpose of effective revenue collection … The section, properly construed, does not purport to immunise Sars from disclosures or publications of allegations of abuse of power or unlawful conduct by it or its senior officials or similar allegations in circumstances where such disclosure or publication is in the public interest.”

AmaBhungane’s Nugent submission states: “In its attempt to, we submit, improperly invoke the TAA as a means to suppress the media’s reportage of allegations in the public interest against them, the plaintiffs acted against the public interest and sought to stifle reportage which the public clearly had a right to know.

“The effect of an allegation that amaBhungane breached section 67(3) of the TAA is that it committed a criminal offence. The potential for such a finding to be visited upon a member of the media would chill reportage relating to Sars (such as the reportage in the article) which clearly would undermine media freedom and the public’s right to be informed.

The submission further notes that Sars similarly sought to rely on section 67(3) to declare unlawful parts of veteran journalist Jacques Pauw’s book The President’s Keepers.

The submission invites the commission to “express a view in its report on whether the reportage of allegations of unlawful conduct within Sars, which is in the public interest, is a contravention of section 67(3) of the TAA”.

* AmaBhungane is represented by Webber Wentzel.

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