Public protector tax

Public Protector Busisiwe Mkhwebane.
(Photo by Gallo Images/Daily News/Raymond Morare)

Public protector’s appeal to access Zuma’s tax information dismissed

The Constitutional Court, on Tuesday, dismissed Public Protector Busisiwe Mkhwebane’s appeal to access personal tax information.

Public protector tax

Public Protector Busisiwe Mkhwebane.
(Photo by Gallo Images/Daily News/Raymond Morare)

Public Protector Busisiwe Mkhwebane has been dealt yet another blow on Tuesday 15 December as the Constitutional Court dismissed her application to appeal a ruling regarding access to former president Jacob Zuma’s tax information. 

In September, parties were seeking clarity on the power of the public protector to subpoena taxpayer information, which the Tax Administration Act, on the other hand, required must remain confidential. This came after former DA leader Mmusi Maimane laid a complaint with Mkhwebane, alleging that Zuma was briefly on the payroll of Royal Security and failed to pay income tax on those salaries. 

Mkhwebane said she needed access to his tax records in order to properly conduct her investigations.


According to EWN, the public protector’s appeal did not reach the Constitutional Court’s jurisdiction.

“The court takes the view that the view against the High Court’s dismissal of the counter-application does not engage this court’s jurisdiction as it simply demands the reconsideration of the application of uncontroversial legal principles. The court thus dismisses the application for leave to appeal the High Court’s dismissal of the counter-application,” the court said. 

The personal cost order against her was, however, set aside. The judge held that each party should pay his or her own costs. 

The Commissioner of the South African Revenue Service (CSARS) previously approached the High Court of South Africa, Gauteng Division, Pretoria 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.


In September Advocate Dali Mpofu argued that Mkhwebane was well within her rights to access taxpayer information in order to fight corruption. 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 also said Mkhwebane could access information by making an application to the court or by obtaining the consent of the taxpayer. Mpofu went on to say that the court admitted that privacy rights of individuals sometimes have 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 asked.