Sars could ‘attract criminal sanctions’ over Zuma tax records – Mkhwebane

Public Protector Busisiwe Mkhwebane during an outreach programme at the Rabasotho Community Center in Tembisa, 21 August 2019. Picture: Neil McCartney

Sars’s refusal to hand over the tax records is ‘a violation of the Constitution’ and ‘could be a criminal violation’, the public protector says.

Public Protector Busisiwe Mkhwebane maintains she does have the power to obtain former president Jacob Zuma’s tax information from the South African Revenue Service (Sars) whose refusal to provide it could result in “criminal sanctions”.

Mkhwebane is seeking to get hold of Zuma’s tax records from Sars as part of her investigation into allegations that, early in his presidency, he had received undeclared payments from a security company.

But according to Sars, the institution is, by law, unable to disclose taxpayers’ information bar a few institutions, and launched an urgent court application to prevent Mkhwebane from obtaining Zuma’s tax information.

While there are various laws governing the issue, including the Public Protector Act and Tax Administration Act, Mkhwebane, in court papers filed last week, said she denied she was prohibited from obtaining taxpayer information.

“I maintain my denial that I am precluded by any law from obtaining or subpoenaing taxpayer information from Sars.

“I have been advised that Section 7 of the Public Protector Act gives me the powers to subpoena any information that will assist me in conducting and completing an investigation,” she said.

Her attempts to subpoena these records were not “coercive”, Mkhwebane said, adding Sars’ refusal to hand the information over could be a criminal violation.

“I deny that my power to subpoena such information is unrelenting and encompasses coercive measures,” she added, saying Sars’ refusal was a violation of the Constitution.

“It can never be seen as a threat by me to an applicant that its failure to co-operate has criminal consequences. By law, these violations attract criminal sanctions.”

Following tweets by Zuma on the matter, Mkhwebane said she intended to obtain an affidavit from him in support of her attempt.

She added she intended to obtain a confirmatory affidavit from Zuma himself but was unable to do so before the required deadline.

As such, she made do with his tweets instead, which she included in her court papers.

In early November, Zuma offered his take on the matter, maintaining he had nothing to hide. He tweeted if the public protector wanted his records, she must have them.

“If the @PublicProtector wants to see my SARS records she is free to do so. We should not make the job of the PP difficult. If she wants my records, she must have them,” he tweeted.

Mkhwebane added she had obtained a second legal opinion (in addition to Sars’ one) by Zuma’s advocate, Muzi Sikhakhane SC, who reached a different conclusion to that of Sars.

Mkhwebane said she hoped this would convince Sars boss Edward Kieswetter to withdraw his court application against her.

“It is my hope that the above-mentioned information ought properly to cause [Kieswetter] either to withdraw [his] application, to adjust it and/or at the least to alter some of the positions previously adopted by it,” she said.

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