ConCourt to hear if public protector's powers extend to taxpayer information

Do the public protector's powers to subpoena extend to taxpayer information?

This is the question that Constitutional Court judges will deal with this week as they hear an application for leave to appeal by the public protector against a high court judgment passed in March which held that taxpayer information was confidential.

The South African Revenue Service (Sars) approached the high court in Pretoria seeking an order declaring that taxpayer information was confidential.

It sought this order after a request by public protector Busisiwe Mkhwebane in 2018 for access to former president Jacob Zuma's tax records.

Mkhwebane 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.

The high court in Pretoria ruled in favour of Sars in March. This led to the public protector applying for leave to appeal directly to the ConCourt.

In heads of argument on behalf of Mkhwebane, advocates Dali Mpofu and Tholoana Motloenya said section 7(4) of the Public Protector Act - which states that the public protector may direct any person to produce any document under his or her control which has a bearing on the matter being investigated - applied to any person without exceptions.

"No legal basis has ever been laid for excluding the Sars commissioner from that wide reach of section 7(4)," argued the advocates.

They said the high court erred in elevating the right to privacy above the constitutional obligations, rights and values.

They also said as a direct appeal was not merely available for the asking, exceptional circumstances must exist before the ConCourt can condone the bypassing of the channels of appeal in the lower courts.

"We submit that it is in the interest of justice for this court to grant direct leave to appeal. The justification for this contention is that the resolution of the dispute is relatively urgent in that it pertains to an ongoing investigation which commenced in 2018," they said.

They said it was in the interests of justice that finality be reached sooner rather than later, and that time and costs would be saved by granting a direct appeal.

'Disclosure of taxpayer information is a criminal offence'

Sars commissioner Edward Kieswetter is opposing the application. His advocates Jeremy Gauntlett and Frank Pelser said taxpayer information was protected by law, giving effect to the constitutional right to privacy.

"The right to privacy is routinely protected in constitutional democracies by requiring either the waiver or permission by the right-bearer, or judicial permission, prior to infringing privacy," they said.

They said whether a Sars official acceded to the public protector's demand for taxpayer information, or instead respected the constitutionally and statutory protected status of taxpayer information - the official would incur criminal consequences.

"This is because under section 69(1) read with section 236 of the Tax Administration Act the disclosure of taxpayer information is a criminal offence."

They said the Public Protector Act also stated non-compliance with a subpoena was a criminal offence.

"Both scenarios expose Sars officials to imprisonment."

They said the public protector was advised to pursue the taxpayer information from the taxpayer concerned, or to approach the high court for such relief.

"Both forms of recourse are available to the public protector under the legal regime, which has – as the founding affidavit filed in this court reiterates – never been contended to be unconstitutional."

They said despite Sars assisting her in identifying and pursuing the available legal course of action, Mkhwebane persisted in deliberately avoiding these available legal routes.

The application is set to be heard on Thursday.

- TimesLIVE