Public Protector notes the Constitutional Court decision on whether her office is entitled to obtain taxpayer information for purposes of investigations

Public Protector Adv. Busisiwe Mkhwebane notes and welcomes today’s judgment of the Constitutional Court in respect of her application for leave to appeal a ruling of the Gauteng Division of the High Court in Pretoria. The ruling for which leave to appeal was sought relates to whether the South African Revenue Service (SARS) is permitted and required to withhold taxpayer information from her office when the information concerned has a bearing on an investigation before her and whether her subpoena powers extend to such information.

The high court decision in question came after Adv. Mkhwebane unsuccessfully subpoenaed former President Jacob Zuma's tax information as part of her investigation of allegations that Mr. Zuma received monthly payments of R1million from a Durban-based security company while he was President. The investigation stems from a complaint lodged by the erstwhile leader of the Democratic Alliance and Member of Parliament, Mr. Mmusi Maimane.

Although the Constitutional Court declined to grant the Public Protector direct access to appeal the High Court declaratory order that a SARS official is entitled to withhold taxpayer information in terms of 11(3) of Public Protector Act read with section 69(1) of the Tax Administration Act (TAA) and the High Court’s dismissal of the Public Protector’s counter application against the Commissioner of SARS, it granted Adv. Mkhwebane leave to appeal the High Court’s order that she must pay 15% of the Commissioner of SARS’ costs from her own pockets. The apex court also upheld her appeal in this regard and set aside the High Court order on the personal costs.

Handing down the unanimous ruling, Justice Mbuyiseli Madlanga criticised the High Court for reaching conclusions in which it used epithets and particular nouns which, he said gave the distinct impression that the Public Protector was a sure candidate for a personal costs order without evidence to support those conclusions. He noted that the apex court had to date dealt with four cases in which personal costs against the Public Protector were an issue, adding that the latest such case involved Public Enterprise Minister Pravin Gordhan. He said, in the Gordhan matter, the High Court “did not even begin” to conduct an inquiry as to what it was that justified the personal costs order.

Justice Madlanga said the High Court, in trying the justify the personal costs order, did not show that Adv. Mkhwebane exhibited egregious conduct or gross disregard for her professional responsibilities and that instead the High Court misdirected itself on facts, made conclusions of bad faith on the part of Adv. Mkhwebane which conclusions amounted to a “leap in logic” and wanted to hold the Public Protector to a standard that has never been part of the South African law, a standard that is “unduly high and legally non-existent”.

“Courts must be weary not to fall into the trap of thinking that the Public Protector is fair game for automatic personal costs awards, considering the chilling effect these orders may have on the exercise of the Public Protector’s powers, including litigation where necessary,” Justice Madlanga said, echoing and affirming Adv. Mkhwebane’s long-held view on the issue.

“Axiomatically the Public Protector’s office is more important than any incumbent. Needless to say, as the judiciary, we must not be guilty of contributing to the weakening that office by making indefensible personal cost awards. You weaken that office, you weaken our constitutional democracy. Its potency, its attractiveness to those it must serve, its effectiveness to deliver on the constitutional mandate must be preserved for posterity.”

Regarding the decision not to grant the Public Protector leave to directly appeal the High Court declaratory and its dismissal of the Public Protector’s counter application, it needs to be emphasized that the Constitutional Court did not deal with the merits of the matter and therefore the appeal has not been decided. This means the door remains open for the Public Protector to approach the Supreme Court of Appeal as she feels strongly that the TAA or any other law for that matter can under no circumstances trump the Constitution.

Her position on the matter has always been and remains that her office is entitled to have access to a taxpayer's information for purposes of an investigation despite the provisions of section 69(1) of the TAA since national legislation cannot trump the Constitution, from which her office draws its original investigative powers. With the help of her legal team, she will study the judgment and take legal advice on the way forward. As she does so, she will also consider the Constitutional Court’s advice on challenging the constitutionality of the TAA, particularly section 69(1) thereof.