ConCourt to rule on Mkhwebane’s powers, once and for all

D-day has arrived for Public Protector Busisiwe Mkhwebane and the South African Revenue Service (Sars).

The question of whether Mkhwebane has the power to subpoena taxpayer information from Sars will be decided once and for all by the Constitutional Court today.

They have been at odds over the issue since Mkhwebane moved to subpoena former president Jacob Zuma’s tax records.

This was part of an investigation into allegations that during the early days of his presidency, Zuma was on the payroll of Royal Security, a KwaZulu-Natal-based company owned by controversial businessman Roy Moodley.

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In March, the High Court in Pretoria ruled the public protector could not subpoena taxpayer information from Sars. Judge Peter Mabuse found her powers did not trump the provisions of the Tax Administration Act, which requires that taxpayer information be kept confidential.

Mabuse tore into Mkhwebane over her refusal to accept a legal opinion obtained from Hamilton Maenetje and her subsequent decision to get another opinion, from Muzi Sikhakhane, without giving Sars a heads-up.

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Mkhwebane turned to the Constitutional Court in a desperate bid to overturn Mabuse’s findings, arguing that to uphold them would “only serve to embolden delinquent public officials typically to manufacture all sorts of ‘legal’ excuses to avoid accountability … for an incalculable number of unsavoury reasons or even neutral reasons, like laziness or other undefined reluctance to comply”.

When the case came before the country’s apex court in September, Mkhwebane’s counsel, advocate Dali Mpofu, also argued that the personal costs order had “no place in this type of litigation”.

“It does not end there. The chilling effect of that cost order, the extreme nature and articulation in which it is made, contributes, or at the very least, should contribute, to the overall assessment of the exceptional circumstances that pertain in this matter,” he said.

– bernadettew@citizen.co.za

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