Strike Three: Public protector girds loins for third legal challenge to access Jacob Zuma’s tax records

Undeterred by an eviscerating judgment by Pretoria High Court Judge Peter Mabuse in March 2020, the public protector approached the Constitutional Court directly to appeal against the ruling.

Mabuse, dismissing Mkhwebane’s bid to flush former president Jacob Zuma’s tax records out of SARS, described her as “dishonest”, as having acted in “bad faith” and for being “improperly in flagrant disobedience of the Constitution”.

She was also ordered personally to pay 15% of SARS Commissioner Edward Kieswetter’s legal costs in that matter with her office [ie taxpayers] bearing the burden of the balance.

The Constitutional Court hearing with Mkhwebane as applicant and SARS, Jacob Zuma, Mmusi Maimane and Royal Security as respondents, has now been set down for Thursday 3 September 2020.

It was in his 2017, boil-lancing best-seller, The President’s Keepers, that Jacques Pauw revealed that between 2007 — when he was elected leader of the ANC and while he was deputy president, through to 2009, when he was elected president of South Africa — Jacob Zuma received about R5-million as a ghost employee of ANC benefactor Roy Moodley’s Royal Security.

This was an amount that came to light during a tax compliance check by SARS of Royal Security’s books between 2009 and 2010. If Jacob Zuma had indeed been employed by Royal, he failed to pay tax on the amount, never mind declare it as a side income.

In March 2020, the Zondo commission of inquiry heard that Moodley’s company received its first tender from Prasa in 2010 and had been paid more than R471-million since.

It was former DA leader Mmusi Maimane who lodged a complaint with the public protector and Mkhwebane has been at it ever since.

At this point the matter is no longer about Zuma’s tax affairs but, said the public protector in her submission to the Constitutional Court, “on the appropriate interpretation of the Constitution and relevant legislation”.

SARS Commissioner Edward Kieswetter has said that Mkhwebane’s insistence that her office had the right to access confidential taxpayer information was an indication that she was acting beyond her powers, and irrationally.

Kieswetter, through advocate Jeremy Gauntlett, in his Constitutional Court papers questioned why Mkhwebane had not simply approached Zuma.

He added that her bid had less to do with Zuma than with setting a precedent about the handing over of confidential tax information without a court order.

This will be Mkhwebane’s third attempt at compelling SARS to disclose Zuma’s tax records. The first, in 2018, resulted in the public protector and SARS jointly approaching counsel for an opinion. Mkhwebane had, at the time, said her office did not have a budget for this.

SARS contested the 2018 subpoena by the public protector to release the Zuma records saying it was bound by the Tax Administration Act and its “secrecy” and “confidentiality regime”.

In that instance, advocate Hamilton Maenetje advised that the public protector could not subpoena SARS for the information but should, instead, approach court for an order to obtain the consent of the taxpayer or get Zuma to do so willingly.

Gauntlett, for SARS, argued that the Constitution explicitly provided that Chapter Nine institutions (of which the public protector is one) were subject to “the Constitution and the law”.