The SARS has approached the Constitutional Court for direct leave to appeal a far-reaching High Court order compelling it to hand over Jacob Zuma’s tax returns for his time as President to two media houses, reports the Mail & Guardian.

The deadline imposed by Judge Norman Davis for SARS to release his tax returns for the period from 2010 to 2018 to the Financial Mail and AmaBhungane expired yesterday.

SARS filed papers on Monday, signalling its intention not only to appeal the order but to appeal for confirmation of the constitutional invalidity of sections 67 and 69 of the Tax Administration Act and sections 35 and 46 of the Promotion of Access to Information Act (Paia).

SARS Commissioner Edward Kieswetter said the two were inextricably linked and the revenue service’s application to appeal the order itself ‘clearly engages a constitutional issue’.

This was so because Davis’ directive to release Zuma’s tax records rested squarely on his finding that the legal provisions were unconstitutional, and this finding was now before the apex court for confirmation.

Davis held that a blanket ban in law on the release of tax records in Paia and the Tax Act limited the right to freedom of information in a manner that did not pass constitutional muster.

SARS had an onus to prove otherwise, and did not meet it, he said.

Kieswetter said that should the appeal on giving the media access to the records be heard by the High Court, the matter would likely end up in the SCA, and ultimately in the Constitutional Court.

‘It would, I submit, be an unnecessary waste of judicial resources, and not in the interests of justice, to have piecemeal litigation, which would be necessitated by proceeding in the ordinary course.’

Kieswetter added that Davis was not competent to order the release of the records until the Constitutional Court had confirmed the invalidity of the relevant sections of the law.

The wrangle over Zuma’s tax records began with allegations that he received money from the Gupta family as well as a stipend from a security company, never paid fringe benefit tax on the state-funded upgrades to his Nkandla home and never filed tax returns in his first seven years in office.

When Financial Times journalist Warren Thompson filed a Paia application to see his tax records, SARS refused.

The two media entities then went to court, arguing that the limitation was not justifiable, states the M&G report.

SARS opposed their application, as did the Ministers of Justice and Finance. But Davis found that sections 35 and 46 of Paia were unconstitutional in precluding access to tax records, even where the normal requirements for public interest disclosure have been met.

Sections 67 and 69 of the Tax Administration Act were similarly unconstitutional.

Davis suspended the ruling for two years to allow Parliament to amend both, but ordered that in the interim provisions to give effect to the ruling should be read into the two Acts.

Full Mail & Guardian report