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 SARS Commissioner 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 to do so, notes legal writer Franny Rabkin in a Mail & Guardian report. 

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 yesterday, the Public Protector’s Office confirmed 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.

‘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’ 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, notes the M&G report.

Mkhwebane is investigating a complaint from former DA leader Mmusi Maimane, that in the early period of Zuma’s presidency he was receiving a R1m monthly salary from Royal Security CC, whose director at the time was reportedly Roy Moodley, a friend of the former President.

In his replying affidavit, Kieswetter addressed the fact that Mkhwebane had got 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.

The case is set down to be heard on 6 March.

Full Mail & Guardian report