Former president Jacob Zuma has broken his silence in the stand-off between the South African Revenue Service (Sars) and the public protector over access to his tax records. In an affidavit signed this week — just days before the court hearing this Friday — he confirmed that he was giving his “unqualified consent” for the public protector to see his confidential tax records.
Sars commissioner Edward Kieswetter urgently approached the high court in Pretoria last year after public protector Busisiwe Mkhwebane threatened him with criminal sanction if he did not hand over Zuma’s tax records as per her subpoena. Kieswetter said the Tax Administration Act protected the confidentiality of taxpayer information and prevented him from giving it to her.
The only circumstances that would allow Sars to give the information to Mkhwebane was if Zuma gave his written consent or if ordered to do so by a court, said Kieswetter.
After the case was reported in the media, Zuma weighed in on Twitter: “If the @PublicProtector wants to see my Sars records she is free to do so … if she wants my records, she must have them.”
But the former president never followed up on his tweet with an affidavit — until this week.
In an explanatory affidavit, Zuma said that when he was asked by the public protector to provide an affidavit, the request “coincided with a period in which I was seriously ill and had, inter alia, to travel out of the country to receive medical attention”.
At the time, his ill health had not been publicly disclosed to protect his privacy, he said. “It was, since last month, a matter of open public knowledge.”
He said he was also advised that his being the author of the tweet was unlikely to be contested and he was “understandably more preoccupied with my health”.
He confirmed that “I wrote the tweet myself”.
“For the avoidance of any doubt, I also state that in writing the tweet, I also intended to give unqualified consent for the use of the relevant information by the public protector or any other organ or institution of state, which would in any event be bound by its own rules regarding confidentiality.”
But Zuma’s last-minute affidavit does not resolve the bigger legal dispute between the parties: whether, as a general rule, taxpayer information — treated as confidential under the Tax Administration Act — must be handed over to the public protector when a subpoena is issued. Or whether, as Sars argues, it requires the written consent of the relevant taxpayer or a court order.
On this bigger question, Zuma said in his affidavit that he would abide by the court’s decision.
Kieswetter said in his court papers that the confidentiality of taxpayers information lay at the heart of Sars’s ability to effectively collect taxes — it was “absolutely critical”, said his counsel Jeremy Gauntlett SC in legal submissions to the court. He added that, “crucially”, this had not been disputed by the public protector in her court papers.
“If the information demanded in this case is produced, the public protector will doubtless consider herself free to make similar demands, at will, in other cases too,” said the Sars commissioner in his affidavit to the high court.
Under the Public Protector Act, any information demanded by the public protector for purposes of an investigation must be handed over — a person may only refuse if there is “just cause” not to. The bigger question for the court now is whether the confidentiality provision under the Tax Administration Act is a “just cause”.
In his heads of argument, Gauntlett argued that complying with the Tax Administration Act constitutes just cause. “Hence the public protector cannot compel by subpoena … the disclosure of such information.”
As the dispute escalated between Sars and Mkhwebane, two legal opinions were obtained from senior counsel. The first, procured jointly by Sars and the public protector, came from Hamilton Maenetje SC and took the same view repeated by Gauntlett. The second, procured by the public protector alone when she was dissatisfied by Maenetje’s opinion, came from Muzi Sikhakhane SC and took a different view.
The section of the Public Protector Act that makes it a crime to refuse to hand information over to the public protector, unless there is just cause to refuse, has never been considered by a court, said Gauntlett.
But, he said, the courts, including the Constitutional Court, have looked at the phrase “just cause” before, when it was used elsewhere.
Taking constitutional rights and values as the starting point, particularly the right to privacy and the rule of law, Gauntlett said: “If a rule of law codified in an Act of Parliament precludes production of subpoenaed information, the inescapable constitutional conclusion is that just cause exists for withholding such information.”
The statutory context and purpose also backs up Sars’s interpretation, said Gauntlett. “The public protector’s efficiency is not impeded by giving effect to the ordinary grammatical meaning of the statutory text.”
But Dali Mpofu SC, for the public protector, said the case is not about a “duel” between the Public Protector Act and the Tax Administration Act. It is a battle between legislation and constitutional obligations and values, he said.
Mpofu quotes the Constitutional Court’s Nkandla judgment, that national legislation cannot have the effect of “watering down or effectively nullifying” the powers conferred on the public protector by the Constitution.
“Granting the order sought herein would serve only to embolden delinquent public officials typically to manufacture all sorts of ‘legal’ excuses to avoid accountability, for an incalculable number of unsavoury reasons or even neutral reasons, like laziness or other undefined reluctance to comply,” he said.