Although former President Jacob Zuma has produced a last-minute affidavit allowing Public Protector Busisiwe Mkhwebane access to his tax records, the wider issue – whether confidential taxpayer information has to be handed over to the Public Protector when a subpoena is issued or whether, as SARS argues, it requires the written consent of the relevant taxpayer or a court order – must still be settled.

That is the matter that will be argued before the Gauteng High Court (Pretoria) today when Mkhwebane faces off with SARS Commissioner Edward Kieswetter.

According to a Business Day report by legal writer Karyn Maughan, Zuma’s affidavit also said he will neither be opposing nor supporting Kieswetter’s application for an order that the Public Protector’s subpoena powers do not extend to taxpayer records.

Zuma confirmed he authored a tweet ‘to indicate that I had no objection to the Public Protector gaining access to the taxpayer information which she seemingly needed to complete an investigation in the public interest’.

Mkhwebane is seeking 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.

Zuma also confirms Mkhwebane’s lawyers sought his confirmation about the authenticity of his tweets in November last year, but this request had ‘unfortunately ... coincided with a period in which I was seriously ill and had ... to travel out of the country to receive medical attention’.

‘For the avoidance of any doubt, I also state that in writing the tweet, I also intended to give unqualified consent for the use of the relevant information by the Public Protector or any other organ or institution of the state, which would in any event be bound by its own rules regarding confidentiality.’

Significantly, Kieswetter has questioned why the Public Protector decided not to approach Zuma for his consent, and is instead persisting with her efforts to subpoena his tax records from SARS.

This question is likely to be a major point of debate when the case is argued today, suggests Business Day.

Kieswetter maintains that independent legal advice obtained by the revenue service and the Public Protector’s Office made it clear that if Mkhwebane wanted to access Zuma’s tax records legally she would either need to apply for them in court or ask Zuma for them directly.

‘The Public Protector has adopted neither of these approaches,’ Kieswetter states in an affidavit, adding: ‘She is significantly unable to explain why she did not do so.’

Full Business Day report

Kieswetter argues that the confidentiality of taxpayers information lay at the heart of SARS’ ability to effectively collect taxes – it was ‘absolutely critical’, said his counsel, Jeremy Gauntlett SC, in legal submissions to the court, according to a Mail & Guardian report by legal writer Franny Rabkin.

He added that, ‘crucially’, this had not been disputed by the Public Protector in her court papers.

‘If the information demanded in this case is produced, the Public Protector will doubtless consider herself free to make similar demands, at will, in other cases, too,’ said the SARS Commissioner in his affidavit.

Under the Public Protector Act, any information demanded by the Public Protector for purposes of an investigation must be handed over – a person may only refuse if there is ‘just cause’ not to.

The bigger question for the court now is whether the confidentiality provision under the Tax Administration Act is a ‘just cause’.

Full Mail & Guardian report