Former president Jacob Zuma has entered the legal battle to keep his tax records off-limits to public scrutiny.
Zuma is arguing that an order compelling their disclosure violates his constitutional rights to privacy while insisting the case should not be used to determine whether he committed any tax offences.
The intervention marks a significant escalation in the long-running fight over access to Zuma’s tax affairs after the former president applied to join the South African Revenue Service (Sars) as a co-applicant in its bid to overturn an enforcement notice issued by the Information Regulator (IR).
If successful, Zuma would stand alongside Sars in opposing the regulator’s decision directing the tax authority to disclose records linked to his tax affairs.
The dispute centres on attempts by UK-based financial journalist Warren Thompson to obtain Zuma’s tax records for the period between 2010 and 2018 after allegations that the former president may have failed to properly declare taxable income, fringe benefits and other financial advantages.
The requested records extend beyond tax returns to include VAT documents, audit findings, correspondence between Sars and Zuma or his attorneys, and records linked to alleged tax evasion investigations. They also include documents relating to Royal Security, identified in the court papers as Zuma’s employer or client during portions of the relevant period.
The records sought are my taxpayer records. They contain information protected not only by the confidentiality provisions of the Tax Administration Act but also by the constitutional rights to privacy, dignity and lawful administrative action
— Ex-president Jacob Zuma in affidavit
In an affidavit supporting his application to intervene filed in the Johannesburg high court this month, Zuma argues that the IR’s decision directly affects his constitutional rights.
“The records sought are my taxpayer records. They contain information protected not only by the confidentiality provisions of the Tax Administration Act but also by the constitutional rights to privacy, dignity and lawful administrative action,” he states.
Zuma argues that before the IR’s decision, Sars had consistently refused access to his taxpayer information, but that the enforcement notice directed the revenue service to disclose significant portions of his confidential records, which could have consequences for himself and others.
His intervention follows Sars’ review application in which it argues that the IR’s enforcement notice is internally contradictory, irrational and incapable of meaningful implementation.
Sars argues that references to criminal investigations involving Zuma and Royal Security appear in portions of the regulator’s findings but are omitted from the operative provisions of the enforcement notice, creating uncertainty over what records the revenue service is legally required to disclose.
Zuma says legal advice made it clear that he should participate as a co-applicant because his interests differ from those of Sars and because the revenue service cannot be expected to fully defend his personal constitutional rights.
Zuma also distances himself from the allegations that prompted Thompson’s request for access to the records.
He says the factual issues remain disputed and that Thompson’s request is based on allegations in newspapers, the state capture commission’s report, the public protector’s report and books, all of which claim the records would reveal substantial contraventions of the law if his tax returns were disclosed.
I am entitled to refuse Mr Thompson access to my tax records. Like every other citizen, I am entitled to protect confidentiality of my tax records
— Zuma
However, Zuma argues that those allegations are not what the high court is being asked to determine.
“The present review application does not require this honourable court to determine whether I have, or have not, committed any tax offence,” he states.
Instead, Zuma argues that the constitutional issue before the court is whether the IR had the legal authority to make what is effectively a determination concerning the commission of criminal tax offences — a function he says parliament entrusted to Sars and, where appropriate, the criminal courts.
He further argues that every taxpayer enjoys the same statutory confidentiality protections over their tax affairs and that he should not be treated differently because of his public profile.
“I am entitled to refuse Mr Thompson access to my tax records. Like every other citizen, I am entitled to protect confidentiality of my tax records,” he states.
Following the Constitutional Court’s landmark Arena Holdings judgment, which held that taxpayer confidentiality is not absolute and may be overridden in limited public-interest circumstances, Thompson renewed his request, arguing that disclosure would reveal evidence of substantial contraventions of the law.
Sars rejected the request, maintaining that the records constituted protected taxpayer information and did not reveal evidence of substantial contraventions of the law as contemplated in section 46 of the Promotion of Access to Information Act.
The IR later upheld Thompson’s complaint and ordered the disclosure of several categories of records, prompting Sars to launch review proceedings.
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