Mkhwebane: Door remains open to appeal High Court ruling on taxpayers' info

The appeal related to a case in which the Public Protector tried to get access to former President Jacob Zuma’s tax records.

Public Protector Busisiwe Mkhwebane. Picture: @PublicProtector/Twitter

CAPE TOWN - Public Protector Busisiwe Mkhwebane on Tuesday welcomed the Constitutional Court’s judgment that granted her leave to appeal a costs order imposed on her in the High Court in Pretoria.

It was a mixed bag for the Mkhwebane as the ConCourt dismissed her appeal bid related to her ability to subpoena taxpayer information. But the court agreed that she had grounds to challenge an order that she personally pay costs in that matter.

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The appeal related to a case in which she tried to get access to former President Jacob Zuma’s tax records.

Although the ConCourt declined to grant Mkhwebane direct access to appeal the High Court order that a South African Revenue Service (Sars) official is entitled to withhold taxpayer information, it granted her leave to appeal the personal cost order.

The High Court had ordered that she should pay 15% of the of Sars’ commissioners’ costs from her own pockets.

Mkhwebane’s spokesperson Oupa Segalwe said that the door for more court action was still open.

“Regarding the decision not to grant the Public Protector leave to directly appeal the High Court declaratory and its dismissal of the Public Protector’s counter application, it needs to be emphasised that the Constitutional Court did not deal with the merits of the matter and therefore the appeal has not been decided.

“This means the door remains open for the Public Protector to approach the Supreme Court of Appeal as she feels strongly that the TAA [Tax Administration Act] or any other law for that matter can under no circumstances trump the Constitution,” Segalwe said in a statement.

He added: “Her position on the matter has always been and remains that her office is entitled to have access to a taxpayer's information for purposes of an investigation despite the provisions of section 69(1) of the TAA since national legislation cannot trump the Constitution, from which her office draws its original investigative powers. With the help of her legal team, she will study the judgment and take legal advice on the way forward. As she does so, she will also consider the Constitutional Court’s advice on challenging the constitutionality of the TAA, particularly section 69(1) thereof.”

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Mkhwebane also noted how when handing down the unanimous ruling, Justice Mbuyiseli Madlanga took time to criticise the High Court for reaching conclusions on Mkhwebane with regards to personal costs.

“He noted that the apex court had to date dealt with four cases in which personal costs against the Public Protector were an issue, adding that the latest such case involved Public Enterprise Minister Pravin Gordhan. He said, in the Gordhan matter, the High Court ‘did not even begin’ to conduct an inquiry as to what it was that justified the personal costs order,” the statement read.

“Justice Madlanga said the High Court, in trying the justify the personal costs order, did not show that Advocate Mkhwebane exhibited egregious conduct or gross disregard for her professional responsibilities and that instead the High Court misdirected itself on facts, made conclusions of bad faith on the part of Advocate Mkhwebane which conclusions amounted to a ‘leap in logic’ and wanted to hold the Public Protector to a standard that has never been part of the South African law, a standard that is ‘unduly high and legally non-existent’.”

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