Despite his buoyant attitude following the postponement of his criminal trial for corruption last week, Jacob Zuma has a lot on his plate, including a legal bill mountain that awaits settlement. 

He also has a pressing legal issue on his hands this week – an application by media organisations to see the former President’s tax records.

Legal writer Franny Rabkin points out the case, scheduled to be heard on Thursday and Friday, also has a much wider significance: investigative journalism outfit amaBhungane and the Financial Mail want the Gauteng High Court (Pretoria) to strike down the whole scheme of legislation that prevents the media from ever accessing taxpayer information in the public interest.

The confidentiality of taxpayer information is regarded as a sacrosanct principle by SARS, which believes it to be absolutely critical to the effective collection of taxes and protects the privacy of taxpayers.

Under the law as it stands, tax information is excluded from the information that must be handed over under the Promotion of Access to Information Act (Paia), even if disclosure would be in the public interest, notes Rabkin in a Sunday Times report.

In written argument, SARS counsel Wim Trengove SC describes the covenant made between taxpayers and the revenue service under SA’s tax laws: ‘Taxpayers are compelled to disclose their secrets to SARS. They are required even to confess their own criminal conduct. They are stripped of their privilege against self-incrimination. In return for their full and frank disclosure, SARS promises to keep their secrets ... To then take their secret information and release it to the media and the public would be a travesty.’

The courts have already sent Public Protector Busisiwe Mkhwebane packing when she tried to subpoena Zuma’s tax records from SARS, notes the report.

The Financial Mail and amaBhungane argue the relevant sections in Paia and the Tax Administration Act are unconstitutional, breaching the rights of freedom of expression and access to information, notes the Sunday Times report. 

The media houses argue that the legislative scheme does not find the correct constitutional balance between the free expression rights and the right to privacy. They say they are not attacking the principle of taxpayer confidentiality generally but the ‘ironclad’ prohibition, with no exceptions, and which would mean that a Paia request for information would never succeed. Zuma’s tax records are a good illustration of why taxpayer information should be subject to a ‘limited exception’, says Steven Budlender SC in his written argument.

Uncontested evidence has come to light that the former President was not tax compliant and the Nugent Commission of Inquiry has found that the independence and competence of SARS had been deliberately undermined, he says.

‘But because of the absolute prohibition on the release of taxpayer information, the media and the public to this day have no idea whether President Zuma was tax compliant and the role that this might have played in the attack on the revenue service,’ says Budlender. 

He says the public interest override in Paia contains safeguards to ensure that most taxpayer information would still remain confidential: there can only be disclosure where it would reveal evidence of lawbreaking. Also, before any information can be given out, the benefit of disclosing would have to outweigh the harm of disclosing.

These factors would never be decided by the journalist asking for the information but by SARS or by a court, he says.

Budlender adds that while SARS had claimed that this absolute confidentiality was essential for tax collection, it had not shown that this was so through evidence.

Full Sunday Times report (subscription needed)