In a clash clearly driven by deep mistrust, SARS Commissioner Edward Kieswetter will this week square off against Public Protector Busisiwe Mkhwebane in a case that centres on former President Jacob Zuma’s tax returns – and which the revenue service stresses could have far-reaching implications for ordinary taxpayers.

Kieswetter wants the Gauteng High Court (Pretoria) to order that the Public Protector’s subpoena powers do not extend to taxpayer records, after she tried to use those powers to compel him to hand over Zuma’s tax information during ‘an interrogation scheduled for 13 November 2019’.

The stakes for both SARS and the Public Protector are high, notes legal writer Karyn Maughan in a Business Day report.

The revenue service is already struggling with rebuilding fallen levels of taxpayer compliance, which could be worsened if taxpayers believe that their confidentiality is not being adequately protected. Mkhwebane is facing the prospect of an inquiry into her fitness to hold office and cannot afford any potentially adverse court ruling against her – after a string of scathing judgments raised serious questions about her integrity, impartiality and grasp of the law.

Kieswetter maintains that he was forced to turn to the courts for help after Mkhwebane threatened him with criminal charges should he not provide her with Zuma’s tax records.

Mkhwebane’s office has in turn publicly stated that a 12-month prison sentence and R40 000 fine could be the punishments imposed, should the tax records she demanded from SARS be withheld.

Mkhwebane is seeking access to Zuma’s tax records as part of her investigation into claims that the former President received monthly payments of R1m from the Royal Security company – headed by politically-connected businessman Roy Moodley – in the first few months of his term.

Kieswetter has stressed that the case is not just about Zuma, but rather about the precedent that could be set with SARS handing over his tax information, without being ordered to do so by a court.

He remains adamant that Mkhwebane must apply for tax records through a High Court application, or directly appeal to Zuma for that information, notes Maughan's Business Day report.

In their heads of argument, Kieswetter’s lawyers say Mkhwebane ‘repudiated SARS’ stance, and apparently adopted the posture that her subpoena powers were not limited by legislation’.

When they suggested that Mkhwebane approach the High Court to establish whether her subpoena powers trumped the Tax Administration Act, SARS lawyers say she declined, ‘claiming a lack of financial resources’.

It was then that they obtained independent legal advice, which reiterated SARS’ stance. Mkhwebane rejected that legal opinion and sought advice from senior counsel Muzi Sikhakhane, who is now representing Zuma in his corruption trial.

Sikhakhane resolved that there was nothing that barred SARS from requiring that the Public Protector only use information that it provided to her ‘for the purposes of investigation, and not to disclose same to third parties or the public’.

Full Business Day report