Mkhwebane takes her battle with Sars to the Concourt

Public protector Busisiwe Mkhwebane is taking her fight for the right to access confidential taxpayer information to the highest court in the land.

She and the South African Revenue Service (Sars) are readying for another face-off – this time in the Constitutional Court.

In March, the High Court in Pretoria ruled that Sars was entitled to refuse to hand the information in question over to the public protector. This on the back of a protracted tug-of-war over former president Jacob Zuma’s tax records.

Judge Peter Mabuse, who wrote the ruling, was particularly critical of Mkhwebane’s refusal to accept a legal opinion, obtained from Hamilton Maenetje, that her subpoena powers did not extend
to tax records and her subsequent decision to get another opinion, this time from Muzi Sikhakhane, without giving Sars a heads up.

He said the public protector was constitutionally obligated to act in accordance with the constitution and the law.

“She does not have more powers than what the constitution,” Mabuse said.

He also slapped her with a personal costs order, saying a public official who acted “improperly and in flagrant disregard of the constitutional norms” ran this risk.

But in a written submission filed with the Constitutional Court as part of a direct access application for leave to appeal Mabuse’s ruling, Mkhwebane’s lawyers charged that to uphold the ruling would “only serve to embolden delinquent public officials typically to manufacture all sorts of ‘legal’ excuses to avoid accountability”.

This, they went on, “for an incalculable number of unsavoury reasons or even neutral reasons, like laziness or other undefined reluctance to comply.”

Of Mkhwebane’s decision to get a second legal opinion, they said this was her prerogative and that she had not been legally duty-bound to accept the first one.

“Counsel’s opinion has no binding effect,” they said. “Even a court judgment may be ‘second guessed’ by appealing against it.”

And of her failure to inform Sars, they said it had simply slipped her mind and that she had since apologised.

Meanwhile, on the issue of costs, Mkhwebane’s lawyers said the matter was not one in which there was room for a punitive costs order – “not to mention personal costs”.

“Here the public official against whom a personal cost order was sought and granted was neither personally cited, nor specifically informed thereof,” they said.

“A failure to address this phenomenon of granting personal costs against the applicant will increase the risk of blunting the constitutionally defined role of the public protector.”

The case is expected to be heard next month.

For more news your way, download The Citizen’s app for iOS and Android.