Public Protector (PP) Kholeka Gcaleka has argued in court papers that neither the provisions of the law nor legal precedent allowed her leeway to challenge SARS’ refusal to give her insight into President Cyril Ramaphosa’s tax records, reports the Mail & Guardian.

Gcaleka’s office was seeking to counter an argument by the ATM in its legal review of her report on the Phala Phala controversy that her failure to probe the President for tax evasion was proof that her findings were irrational.

The ATM contends that she conducted a perfunctory investigation with a predetermined outcome.

It said this was clear from her failure, inter alia, to press the point with SARS through the Constitutional Court ruling in Arena Holdings (Pty) Limited t/a Financial Mail and Others v South African Revenue Service and Others in May 2023, which opened the door for her to do so.

In his founding affidavit, ATM president Vuyo Zungula noted that the apex ruling came a month before Gcaleka made her report public.

She therefore had an opportunity to challenge SARS’ refusal to give her access to Ramaphosa’s records on the basis of confidentiality provisions in the Tax Administration Act.

Zungula and DA leader John Steenhuisen filed complaints with the PP in June 2022, shortly after Arthur Fraser, the former head of the State Security Agency, told the police that a small fortune in foreign currency was stolen from Phala Phala in February 2020.

A central thrust of these was that Ramaphosa breached the Executive Members Ethics Act by undertaking paid work outside the scope of his official duties and exposed himself to a risk of conflict between his constitutional obligations and his private interests.

Gcaleka inherited the investigation days after it began when Busisiwe Mkhwebane was suspended by the President.

Her first step was to reinforce the team investigating the matter, according to the affidavit, which went on to say that ‘no stone was left unturned to ensure a thorough investigation was conducted’.

This meant repeatedly engaging with other organs of state from Parliament to the police to the registrar of deeds in Limpopo to SARS and SARB.

Vusumuzi Dlamini, the lead investigator on the Phala Phala complaints, said a letter was sent to the SARS commissioner on 31 August, asking whether the revenue service was investigating the matter, in which case the PP wanted a copy of the investigation report.

‘On 5 September 2022, the SARS commissioner reverted to PPSA by way of a letter to which he attached legal opinion which provided that the PP was not entitled to that information,’ the affidavit, deposed to by Dlamini, noted.

Dlamini said on the same day the letter landed, he interviewed four SARS officials who confirmed that ‘they could not disclose tax information to the PPSA’.

The Arena Holdings ruling had no bearing on the Phala Phala investigation because the case concerned a request by the media, not the PP, for access to taxpayer information.

But whatever the legal position, he added, Gcaleka took the view that it was best to let SARS decide whether it would investigate allegations regarding Ramaphosa’s taxes.

Multiple investigations would be a waste of public money and pose the risk of forum shopping, according to the M&G report.

Full Mail & Guardian report