Busisiwe Mkhwebane’s bid to access former President Jacob Zuma’s tax records, particularly those relating to his apparent moonlighting as an employee of Royal Security, will be heard in the Constitutional Court on 3 September, reports Marianne Thamm for the Daily Maverick.

Undeterred by an eviscerating judgment by Gauteng High Court (Pretoria) Judge Peter Mabuse in March, the Public Protector approached the Constitutional Court directly to appeal against the ruling. Mabuse, dismissing Mkhwebane’s bid to flush former Zuma’s tax records out of SARS, described her as ‘dishonest’, as having acted in ‘bad faith’ and ‘in flagrant disobedience of the Constitution’.

She was also ordered personally to pay 15% of SARS Commissioner Edward Kieswetter’s legal costs in that matter with her office bearing the burden of the balance. At this point, notes the DM, the matter is no longer about Zuma’s tax affairs but, said the Public Protector in her submission to the Constitutional Court, ‘on the appropriate interpretation of the Constitution and relevant legislation’.

Kieswetter has said that Mkhwebane’s insistence that her office had the right to access confidential taxpayer information was an indication that she was acting beyond her powers, and irrationally.

Kieswetter, through Advocate Jeremy Gauntlett SC, in his Constitutional Court papers, questioned why Mkhwebane had not simply approached Zuma. He added that her bid had less to do with Zuma than with setting a precedent about the handing over of confidential tax information without a court order.

Mkhwebane ignored advice by Advocate Hamilton Maenetje SC that the Public Protector could not subpoena SARS for the information, but should, instead, approach court for an order to obtain the consent of the taxpayer or get Zuma to do so willingly.

Instead, she sought a second opinion from Advocate Muzi Sikhakhane SC. She did not, however, disclose this to the court.

Mkhwebane, in her submission to the Constitutional Court in support of her application, denied that she had deliberately failed to disclose Sikhakhane’s opinion prior to the High Court hearing.

‘Unfortunately, she inadvertently omitted to send a copy of the Sikhakhane opinion to the first respondent due to her busy schedule…’ 

The DM report notes Advocate Dali Mpofu SC set out in the Public Protector’s submission. Mpofu said ‘nothing really turns on this since even after being apprised of and reading the Sikhakhane SC opinion, the first respondent persisted with the application, as it was entitled to do.’

What Sikhakane suggested to the Public Protector was that the Constitution was superior to the Tax Act and that the Public Protector could ask for records and that SARS could ‘pass’ the same conditions of confidentiality to the Public Protector.

Sikhakhane had, said Mpofu, ‘vindicated the interpretation preferred by the Public Protector’.

Any suggestion of mala fides on Mkhwebane’s part was ‘illogical’ said Mpofu.

Gauntlett argued that the Constitution explicitly provided that Chapter Nine institutions were subject to ‘the Constitution and the law’.

‘The Constitution and the law are quite clear. Taxpayer information is protected by law giving effect to the constitutional right to privacy,’ said Gauntlett.

Full Daily Maverick report