Public protector may not subpoena Zuma’s tax records, says high court

In another court defeat for public protector Busisiwe Mkhwebane, the high court declared on Monday that the South African Revenue Service (Sars) is entitled to refuse to hand over taxpayers’ confidential information to the public protector. 

In a blistering judgment, Pretoria high court Judge Peter Mabuse also said that Mkhwebane had been dishonest, and had acted in bad faith and “improperly in flagrant disobedience of the Constitution” in her battle with Sars about accessing former president Jacob Zuma’s tax  records.

The face-off between the public protector and Sars arose after Mkhwebane subpoenaed Zuma’s tax records in October last year in her investigation into an allegation that he had — in the early months of his presidency — been on the payroll of the company Royal Security.

It emerged during the litigation that this was not the first time Mkhwebane had sought to use her powers of compulsion to obtain Zuma’s tax records.

In 2018, a similar subpoena was issued. When Sars protested that, under the Tax Administration Act, taxpayer information is highly confidential, the public protector and Sars jointly approached counsel for a legal opinion, with Sars paying because Mkhwebane said her office was short of funds. 


The opinion the parties obtained from Hamilton Maenetje SC said that the public protector could not subpoena the information. Instead, she could approach court for an order or obtain the consent of the taxpayer.

Unhappy with this opinion, Mkhwebane sought a second one — from Muzi Sikhakhane SC — but did not disclose this to Sars until this court case was launched

‘Reckless litigation’

Mabuse took a dim view of these steps by the public protector: “Now all of a sudden she has funds to secure the second senior counsel’s opinion. She was mala fide. She failed to uphold the Constitution. She was prepared to litigate recklessly. She acted improperly, in flagrant disobedience of the Constitution and the law.”

He also said Mkwebhane had already made up her mind and “did not genuinely take part in the process that led to the opinion of Adv Maenetje SC and Adv [Nick] Ferreira …. She was not honest.”

Mabuse said the legal issue before him was a simple one. Under the Public Protector Act, someone can refuse to hand over information sought by the public protector — if there is “just cause” to do so. 

If someone were prevented by law — as Sars officials are, under the Tax Administration Act — from disclosing the information, this constituted just cause, he said.

Mabuse rejected the argument that the public protector’s power of subpoena was granted by the Constitution. The subpoena power came from national legislation, he said. National legislation also required that taxpayer information be kept confidential. The two could be read together as Maenetje’s opinion stated. 

“The public protector is required to act in accordance with the law. Her powers of subpoena, which emanate from the PPA [Public Protector Act] and not from the Constitution, are accordingly subject to the law. They, therefore, do not trump the provisions of section 69(1) of the TAA [Tax Administration Act],” he said.

The judge also ordered that Mkhwebane pay 15% of Sars’s legal costs from her own pocket because, he said, she had acted and litigated in bad faith.

Read the judgment below:

Commissioner of SARS v Public Protector & Others 8407-19.PDF by Mail and Guardian on Scribd

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

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

Zondo tightens his grip with criminal complaint against Zuma

The state capture commission’s star witness now faces a criminal complaint and another summons

Masterclasses in duck-and-dive

You didn’t need to be a genius or a prophet to predict that Bushiri would run or that Zuma would stall

#CR17 fight heads to the Constitutional Court

amaBhungane’s arguments about the disclosure of campaign funding are also expected to be heard
Advertising

Subscribers only

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

Q&A Sessions: ‘I think I was born way before my...

The chief executive of the Estate Agency Affairs Board and the deputy chair of the SABC board, shares her take on retrenchments at the public broadcaster and reveals why she hates horror movies

More top stories

Exclusive: Top-secret testimonies implicate Rwanda’s president in war crimes

Explosive witness testimony from the International Criminal Tribunal for Rwanda implicates Paul Kagame and the RPF in mass killings before, during and after the 1994 genocide.

Shadow of eviction looms over farm dwellers

In part two of a series on the lives of farm dwellers, Tshepiso Mabula ka Ndongeni finds a community haunted by the scourge of eviction

Editorial: Crocodile tears from the coalface

Pumping limited resources into a project that is predominantly meant to extend dirty coal energy in South Africa is not what local communities and the climate needs.

Klipgat residents left high and dry

Flushing toilets were installed in backyards in the North West, but they can’t be used because the sewage has nowhere to go
Advertising

press releases

Loading latest Press Releases…