The Public Protector has still not received confirmation from former president Jacob Zuma that she may access his tax records — despite a tweet from Zuma’s twitter account in November.
Public Protector Busisiwe Mkhwebane and the commissioner of the South African Revenue Service (Sars), Edward Kieswetter, are in a court battle after Kieswetter refused to provide Mkhwebane with the former president’s tax information, saying it would be unlawful.
When the dispute first emerged in the public domain, in November 2019, Zuma entered the fray via Twitter, saying: “If the @PublicProtector wants to see my SARS records she is free to do so … if she wants my records, she must have them.”
But on Thursday, the Public Protector’s office confirmed that there was, as yet, no affidavit from the former president confirming that he consented to Sars handing over his tax records. Nor had Zuma sought to enter the ongoing litigation, said Sars’ attorney.
“There is still no confirmatory affidavit and we have not pursued it but the option remains open,” said the public protector’s spokesperson, Oupa Segalwe.
Meanwhile, Kieswetter said, in his replying affidavit filed last month: “A tweet does not qualify as taxpayer consent as required under the Tax Administration Act.”
Kieswetter and Mkhwebane disagree on whether, in law, the Public Protector has the power to subpoena taxpayer information — normally treated as strictly confidential under the Tax Administration Act. Sars’s view is that taxpayer information may only be provided if there is a court order, or if the relevant taxpayer has given consent. Mkhwebane says that her constitutional powers and powers under the Public Protector Act allow her to subpoena the information.
Mkhwebane is investigating a complaint from former Democratic Alliance leader Mmusi Maimane, that in the early period of Zuma’s presidency he was receiving a R1-million monthly salary from Royal Security CC, whose director at the time was reportedly Roy Moodley, a friend of the former president.
In her court papers, Mkhwebane said that she had tried to get an affidavit from Zuma to confirm his tweet but this had proved logistically difficult; and when she asked Sars’s lawyers for more time, they refused to extend the deadline.
However, Kieswetter disputes this. He attaches correspondence between their two sets of attorneys, reflecting that the reason given for the request for more time was that the public protector’s senior counsel “was not in a position to settle our client’s [the Public Protector’s] answering affidavit”.
The commissioner’s attorney, Reham Shamout, said: “The request for an extension was not because it was ‘logistically difficult’ to achieve in time ‘a confirmatory affidavit from President Zuma’.”
Kieswetter said: “She [Mkhwebane] vaguely suggests that an attempt was made to obtain a confirmatory affidavit from him… She offers no facts as to how — a letter, a call or an emissary — this is suggested to have happened. If her intimated contact with the former President were documented or otherwise corroborated, doubtless this would have been attached or otherwise corroborated.”
In his replying affidavit, Kieswetter also addressed the fact that Mkhwebane had gotten a second opinion on the correct legal position from Muzi Sikhakhane SC, supporting her view.
But all this opinion showed, said Kieswetter, was that there was indeed a “live dispute” on the law. While Sikhakhane’s opinion supported Mkhwebane, an earlier opinion, obtained jointly by Sars and the public protector from Hamilton Maenetje SC, supported Sars, he said.
Kieswetter also suggested that Sikhakhane was not provided with Maenetje’s earlier written opinion, as Sikhakhane’s opinion did not engage with Maenetje’s. Nor did Mkhwebane disclose exactly what her brief to Sikhakhane was — “vital I am advised, in considering the opinion rendered”.
Kieswetter added that, “based on independent legal advice considering both opinions,” he “respectfully disagree[d]” with that Sikhakhane’s view was “correct and preferable” to Maenetje’s.
He added that the public protector had not given Sars the opinion from Sikhakhane or even said anything about it prior to the litigation. “There is simply no supportable factual basis for the bald contention that the Public Protector ‘did indicate’ to me that she had sourced the opinion prepared by Adv Sikhakhane SC. She never ‘indicated’ any such thing to me or Sars. Significantly she does not suggest when, how and through whom she ‘did indicate’ this.”
The case is set down to be heard on March 6.