Suspended Public Protector Busisiswe Mkhwebane. (Oupa Nkosi)
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.
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.