WATCH: ConCourt rules against Public Protector Mkhwebane in Zuma tax case

Public Protector Busisiwe Mkhwebane was censured again on Tuesday, when the Constitutional Court threw out her application for leave to appeal against a High Court judgment handed down which held that she could not force the South African Revenue Services (Sars) to hand over confidential taxpayer information.

Justice Mbuyiseli Madlanga, who penned the apex court’s ruling, said the application’s urgency was “contrived” and that it bore no prospects of success.

He did, however, overturn the personal costs order she was slapped with in the High Court.

In March, the North Gauteng High Court ruled Sars was entitled to refuse to hand the information in question over to the Public Protector and ordered her to pay a percentage of Sars’ legal costs, out of her own pocket. This on the back of a protracted tug o’ war between the two over former president Jacob Zuma’s tax records.

Mkhwebane had tried to subpoena the information in question in late 2018. This as part of an investigation into allegations that during the early days of his presidency, Zuma had been on the payroll of Royal Security – a KwaZulu-Natal based company owned by controversial Durban businessman Roy Moodley.

In the Constitutional Court, she had argued she needed to finalise the investigation expeditiously and the case was thus urgent. But on Tuesday, Madlanga wasn’t buying it.

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“In my view, if expedition was any consideration, the public protector would not have gone on a power-testing expedition – venturing into unknown, uncertain territory,” he said,

“She could have simply obtained the taxpayer’s written consent … It seems former president Zuma was willing to provide such consent. And in the unlikely event of consent being withheld, the public protector could have sought a court order … If her reasons for needing the information were cogent enough – and she suggests that they are – this alternative would have been better suited for delivering the desired expeditious results”.

Of the merits of her appeal bid, meanwhile, Madlanga said the Tax Administration Act (TAA) was clear.

“The TAA provides that Sars must preserve the secrecy of taxpayer information and may not disclose taxpayer information to a person who is not a Sars official. The act then creates narrow exceptions to this prohibition. The disclosure of taxpayer information in compliance with a subpoena issued by the public protector is not one of the exceptions.”

Madlanga said the public protector could not “simply wish away” the legislation.

He said, though, that while her view that she had been entitled to issue a subpoena had been “misguided,” it appeared to have been “genuinely held”.

And he found the High Court had “misdirected” itself in handing down a personal costs order against Mkhwebane.

“The High Court erred in holding that it was expected of the Public Protector to act with a “high degree of perfection”. That standard has never been part of our law,” he said – adding if it were, it would make public office “financially hazardous in the extreme”.

“The High Court held the Public Protector to an unduly high and legally non-existent standard,” Madlanga said.

He pointed to the “developing trend” of seeking personal costs orders in cases involving the public protector.

“Courts must be wary not to fall into the trap of thinking the public protector is fair game for personal costs awards, considering the chilling effects these orders may have on the exercise of the public protector’s powers,” Madlanga said.

He cautioned against the judiciary “contributing to the weakening” of the public protector’s Office, by making “indefensible” personal costs awards.

“You weaken that office, you weaken our constitutional democracy,” he said.

Watch the judgment being handed down below: 

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