Busisiwe Mkhwebane fights for access to taxpayer information

Public Protector Busisiwe Mkhwebane is determined to subpoena taxpayer information from Sars for investigating purposes. The Constitutional Court, on Thursday 3 September, heard an application for direct leave to appeal regarding the matter between Mkhwebane and the tax administration. 

DOES MKHWEBANE HAVE THE POWER TO ACCESS TAXPAYER INFORMATION? 

The parties were seeking clarity on the power of the Public Protector to subpoena taxpayer information, which the Tax Administration Act, on the other hand, requires must remain confidential. This comes after One SA movement Mmusi Maimane laid a complaint with Mkhwebane, alleging that former president Jacob Zuma was briefly on the payroll of Royal Security and failed to pay income tax on those salaries.  

Mkhwebane issued a subpoena for the Commissioner of the South African Revenue Service (CSARS) to appear before her and bring certain documentary information and evidence. CSARS argued that he was barred from doing so by the secrecy and confidentiality regime in the Tax Administration Act.

The parties agreed to brief senior counsel to provide an opinion, which would be funded by SARS due to the Mkhwebane’s financial constraints. Advocate Maenetje SC was briefed and provided an opinion which stated that the Public Protector’s subpoena powers do not include the power to compel disclosure of SARS confidential and taxpayer information.

Based on a second opinion, Mkhwebane issued a second subpoena in October 2019.

CSARS then approached the High Court of South Africa, Gauteng Division, Pretoria (High Court) for a declarator that SARS is permitted under the proviso of “just cause” to withhold taxpayer information, and that the Public Protector’s subpoena powers do not extend to taxpayer information. He further sought an order that 15% of his costs be paid by Mkhwebane in her personal capacity. The High Court held in favour of CSARS.

DALI MPOFU FIGHTS FOR ACCESS

Advocate Dali Mpofu argued that Mkhwebane is well within her rights to access taxpayer information. Mpofu argued throughout the day in a virtual sitting with multiple justices present, that it was for investigative purposes to battle corruption. He also said there are exceptions, up to 15, for taxpayer information to be disclosed. 

Justice Leona Theron, however, said the Tax Administration Act provided exceptions whereby certain entities could be provided with tax information and the public protector was not one of them.

“If this court was to accept the public protector’s interpretation of the Tax Administration Act, would that not require us to broaden the scope of section 70 so that the Public Protector becomes one of those entities that are exempted?” she said. 

Theron said Mkhwebane conceded that her investigative powers are not undermined. She also conceded that if her subpoena powers do not include the power to dispel disclosure of taxpayer information, her investigative powers may not be undermined because she can access that information by making an application to the court or by obtaining the consent of the taxpayer. 

“We accept that the privacy rights of the taxpayer is an important thing but it’s a question of two important things. It’s also important that corruption [be] investigated, it’s important that members of the executive be held accountable and the public protector must be given teeth to do all those things,” said Mpofu.  

Referring to a previous case, Mpofu said crime-fighting is important and so is corruption. He said the court admitted that the privacy rights of individuals sometimes has to yield to crime-fighting motives. 

“In the days of PPE corruption and all that, should the Public Protector be able to follow all the billions even if it has to be at the expense of Sars giving information? or should we just forget about the billions and preserve the privacy rights of taxpayers?” he said. 

Mpofu pointed out that the head of Nsfas has access to taxpayer information but Mkhwebane, who is the public protector, does not. Judgement in the matter has since been reserved.