Mkhwebane sticks to her guns on Zuma’s tax records

 

 

Public Protector Busisiwe Mkhwebane has insisted in court papers that she does have the legal power to subpoena taxpayer information, and has an opinion from senior counsel to back her up.

Mkhwebane is in a court dispute with the South African Revenue Service (Sars) commissioner Edward Kieswetter after she tried to subpoena the tax records of former president Jacob Zuma.

READ MORE: Clash of the Titans: Sars vs Busi

Kieswetter said that if he gave Mkhwebane the information, he would be in breach of the Tax Administration Act and his oath — both require him to keep taxpayers’ information confidential. Mkhwebane said that the Constitution and section 7 of the Public Protector Act allowed her to subpoena any information, and had reminded him of the contempt provisions under the Public Protector Act.

In his founding affidavit, Kieswetter set out the history of the stand-off, saying that, because Sars and the public protector had such a differing view of the applicable law, they had jointly briefed senior counsel Hamilton Maenetje for an opinion.

The opinion, which Mkhwebane has now attached to her court papers, took the view that the public protector may not subpoena taxpayers’ information — even if it has a bearing on an investigation.


The Tax Administration Act strictly sets out when, and to which bodies, Sars may give such information and the public protector was not one of them, the opinion said. However, she may go to court in terms of the Tax Administration Act or ask the relevant taxpayer for their consent to Sars sharing the information.

In later correspondence, Mkhwebane rejected the opinion of Maenetje and said she would be seeking the opinion of a second senior counsel. Kieswetter said Sars was not invited to participate in this second opinion or told what it contained.

“It does not appear that any such opinion exists or, if it does, that it supports the public protector’s intransigent stance,” he said.

In her answering affidavit, Mkhwebane said that she did, in fact ,procure a second opinion, from Muzi Sikhakhane SC. His view “agrees and accords with the view honestly and always held by the public protector”, said Mkhwebane.

“On the other hand, I found the Maenetje SC opinion to be significantly deficient, more perpetually in its glaring failure to take into account the provisions of the Constitution,” she said.

Sikhakhane’s opinion — which he said was preliminary because he was not briefed with the detail about whose and what kind of information was being sought — is also attached to the court papers.

In it, Sikhakhane refers extensively to the Constitution, including the duty placed on organs of state to support the public protector and the wide powers granted to her office. He refers to the Nkandla judgment of the Constitutional Court and quotes it, saying that national legislation cannot water down or effectively nullify the powers already conferred by the Constitution on the public protector.

“It follows in my view that the power of compelling the provision of information to the public protector overrides the secrecy provision in the TAA [Tax Administration Act].”

Mkhwebane apologised for not having shared Sikhakhane’s opinion with Sars earlier. It was inadvertent, “mainly owing to my busy schedule”.

She added that after Kieswetter’s application was launched Zuma had, on Twitter, indicated his consent to the hand over of court records. When her lawyers asked for more time to receive a confirmatory affidavit from the former president, the request was refused, said Mkhwebane.

She said she hoped her affidavit would lead Kieswetter to withdraw or adjust his application, or at least alter some of its positions — “not least of which is the gratuitous and insulting contribution of an improper motive on my part”.

Kieswetter had said that Mkhwebane’s willingness to “ride roughshod over independent legal advice” and her threats to hold him in contempt gave rise to a “clear inference”.

“This is that the public protector, in her insistence on access to whatever taxpayer information she chooses, acts not only in excess of her powers, irrationally and unreasonably, but pursues extraneous or ulterior objectives,” he said.

Mkhwebane also said there was no basis to suggest that she would make similar demands, at will, in other cases. “The current demand is made as the information is necessary for the investigation I am conducting.”

Mkhwebane is investigating a complaint by former Democratic Alliance leader Mmusi Maimane that in the early period of Zuma’s presidency he was receiving a R1-million monthly salary from Royal Security. 

Subscribe to the M&G for R2 a month

These are unprecedented times, and the role of media to tell and record the story of South Africa as it develops is more important than ever.

The Mail & Guardian is a proud news publisher with roots stretching back 35 years, and we’ve survived right from day one thanks to the support of readers who value fiercely independent journalism that is beholden to no-one. To help us continue for another 35 future years with the same proud values, please consider taking out a subscription.

And for this weekend only, you can become a subscriber by paying just R2 a month for your first three months.

Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

Related stories

Q&A Sessions: Frank Chikane on the rainbow where colours never meet

Reverend Frank Chikane has just completed six years as the chairperson of the Kagiso Trust. He speaks about corruption, his children’s views and how churches can be mobilised

Zuma maintains his true colours at Zondo commission

The former president’s escapades at the commission of inquiry into state capture are a far cry from Nelson Mandela’s response when summonsed to testify in the high court

Gordhan tells Zondo how Moyane wanted to advance the objectives of state capture

The public enterprises minister is being cross-examined by Tom Moyane’s lawyers at the state capture inquiry, as both men seek to defend their reputations

Public protector’s ‘mistakes’ were made to nail the president, court hears

Busisiwe Mkhwebane discarded facts that were inconvenient to her when she investigated the CR17 campaign, Cyril Ramaphosa’s lawyers argued

General Council of the Bar slams Zuma Foundation

Another summons has been served on Jacob Zuma at his Nkandla residence, requiring the former president to appear before the Zondo Commission next year

CR17 report is not perfect, but the investigation was rational, court hears

So says public protector Busisiwe Mkwhebane’s lawyer, who said she had reason to suspect the money was being laundered through the campaign
Advertising

Subscribers only

Q&A Sessions: Frank Chikane on the rainbow where colours never...

Reverend Frank Chikane has just completed six years as the chairperson of the Kagiso Trust. He speaks about corruption, his children’s views and how churches can be mobilised

ANC: ‘We’re operating under conditions of anarchy’

In its latest policy documents, the ANC is self-critical and wants ‘consequence management’, yet it’s letting its members off the hook again

More top stories

Covid-19 stems ‘white’ gold rush

The pandemic hit abalone farmers fast and hard. Prices have dropped and backers appear to be losing their appetite for investing in the delicacy

Al-Shabab’s terror in Mozambique

Amid reports of brutal, indiscriminate slaughter, civilians bear the brunt as villages are abandoned and the number of refugees nears half a million

South Africa’s cities opt for clean energy

Efforts to reduce carbon emissions will hinge on the transport sector

How designing ‘green’ buildings can help to combat the climate...

South Africa’s buildings account for 40% of the country’s greenhouse gas emissions. But the City of Johannesburg’s new draft green buildings policy aims to change that
Advertising

press releases

Loading latest Press Releases…