By Lehlohonolo Lehana.
The Constitutional Court (ConCourt) has directed the South African Revenue Service (Sars) to make a fresh determination on releasing former president Jacob Zuma’s tax records.
The ConCourt delivered its judgment on Tuesday.
SARS appealed a 2021 high court ruling that ordered the revenue service to hand over Zuma’s tax records to investigative media houses,amaBhungane and Financial Mail.
SARS denied the request, saying Zuma is entitled to privacy.
At the time, the Pretoria High Court ruled Sars must provide the publications with the tax records for the periods between 2010 and 2018.
Judge Norman Davis had also ruled sections 67 and 69 of the Tax Administration Act and sections 35 and 46 of the Promotion of Access to Information Act (PAIA) were unconstitutional.
On Tuesday, the ConCourt confirmed the high court ruling in declaring the Acts invalid as the laws did not permit access to tax records in the public interest.
The decision means that both pieces of legislation must now be amended to allow for access to tax records in the public interest.
In a majority judgment penned and delivered by Justice Jody Kollapen, the court agreed that Sections 35 and 36 of Paia and sections 67 and 69 of the Tax Administration Act are in conflict with section 32 of the Constitution.
Section 32 of the Constitution says that “everyone has the right of access to: (a) any information held by the state; and (b) any information that is held by another person and that is required for the exercise or protection of any rights.”
At the time of the argument, Zuma denied this saying the allegations emanated from unnamed sources. He also argued that the amount of tax owed by him was not specified. He argued that the request to access his tax records infringed on his rights to privacy.
However, Kollapen said the majority of the court felt there was a need to strike a balance between the right to privacy and the right to access to information.
The majority judgment emphasises the importance of the rights to privacy, access to information and freedom of expression. It holds that these rights achieve different but legitimate and interconnected individual and societal interests. It holds that the case is about the balance to be struck between these competing rights,” Justice Kollapen said in summarising the judgment.
He added that the “absolute prohibition” in sections 35 and 36 of Paia “cannot withstand constitutional scrutiny”.
“The purpose of the limitation to achieve taxpayer compliance does not pass the limitation test. Limitations may be justified but no case had been passed for an absolute limitation,” he said.
The court has given Parliament 24 months to amend the legislation. SARS has been ordered to make a new decision on access to Zuma’s tax records, in line with the court order.