Should public protector have access to taxpayer records: Court to rule

23 March 2020 - 07:07 By ERNEST MABUZA
Public protector Busisiwe Mkhwebane. The Pretoria high court is expected to pass judgment on whether the public protector should have access to taxpayers' records.
Public protector Busisiwe Mkhwebane. The Pretoria high court is expected to pass judgment on whether the public protector should have access to taxpayers' records.
Image: Thapelo Morebudi

Judge Peter Mabuse is expected to pass judgment on Monday in an application by Sars commissioner Edward Kieswetter for an order declaring that the public protector’s subpoena powers do not extend to taxpayer records.

Kieswetter’s application was heard earlier this month in the high court in Pretoria.

The Sars boss argued that the revenue service was bound by law to preserve the secrecy of taxpayer information and legislation prevented it being shared with the public protector.

Sars sought the order after a request by public protector Busisiwe Mkhwebane in 2018 for former president Jacob Zuma's tax records.

She sought the records as part of her investigation into claims that Zuma received monthly payments of R1m from Royal Security, headed by politically connected businessman Roy Moodley, in the first few months of his term in office in 2009.

Arguing on behalf of Sars, Jeremy Gauntlett SC said there were limited instances in the Tax Administration Act that allowed Sars to release taxpayer information to others.

These included cases where Sars officials were acting in the course of performing their duties under the Tax Act, including to the police and the prosecuting service, or by order of the high court, or if the information was public information.

However, Dali Mpofu SC, appearing for the public protector, said the order sought by Sars should not be granted.

He said the constitution was the supreme law and if there was a clash between the provisions of the constitution and the provisions of the Tax Administration Act, the constitution must prevail.

Mpofu said section 182 of the constitution required that other organs of state must assist and protect Chapter 9 institutions, including the public protector, to ensure their dignity and effectiveness.

“This means that others, including Sars, have a constitutional duty to assist the public protector,” Mpofu said.


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