Do the Public Protector's powers to subpoena extend to taxpayer information? This is the conundrum that will face the Constitutional Court tomorrow when the justices will hear an application for leave to appeal by the Public Protector against a Gauteng High Court (Pretoria) judgment in March which held that taxpayer information was confidential.

SARS approached the High Court seeking an order declaring taxpayer information to be confidential after a request by Public Protector Busisiwe Mkhwebane in 2018 for access to former President Jacob Zuma's tax records. She sought the records, notes TimesLIVE, as part of her investigation into claims that Zuma received monthly payments of R1m from Royal Security, headed by politically-connected businessman Roy Moodley, in the first few months of his term in office in 2009.

In heads of argument on behalf of Mkhwebane, Advocates Dali Mpofu and Tholoana Motloenya said section 7(4) of the Public Protector Act – which states that the Public Protector may direct any person to produce any document under his or her control which has a bearing on the matter being investigated – applied to any person without exceptions.

‘No legal basis has ever been laid for excluding the SARS Commissioner from that wide reach of section 7(4),’ argued the advocates.

They said the High Court erred in elevating the right to privacy above the constitutional obligations, rights and values.

Seeking the top court’s approval for their direct approach, they argued it was in the interests of justice that finality be reached sooner rather than later, and that time and costs would be saved by granting a direct appeal.

SARS Commissioner Edward Kieswetter is opposing the application, notes the TimesLIVE report.

His advocates, Jeremy Gauntlett and Frank Pelser, said taxpayer information was protected by law, giving effect to the constitutional right to privacy.

‘The right to privacy is routinely protected in constitutional democracies by requiring either the waiver or permission by the right-bearer, or judicial permission, prior to infringing privacy,’ they said. They said whether a SARS official acceded to the Public Protector's demand for taxpayer information, or instead respected the constitutionally and statutory protected status of taxpayer information, the official would incur criminal consequences.

‘This is because under section 69(1) read with section 236 of the Tax Administration Act the disclosure of taxpayer information is a criminal offence.’

They said the Public Protector Act also stated non-compliance with a subpoena was a criminal offence.

‘Both scenarios expose SARS officials to imprisonment.’

They said the Public Protector was advised to pursue the taxpayer information from the taxpayer concerned, or to approach the High Court for such relief.

‘Both forms of recourse are available to the Public Protector under the legal regime, which has – as the founding affidavit filed in this court reiterates – never been contended to be unconstitutional.’

Full TimesLIVE report