By Lehlohonolo Lehana.
The North Gauteng High Court has ruled that AmaBhungane and Financial Mail can have access to former president Jacob Zuma’s tax records, following an application to this end brought in November 2019.
Judge Norman Davis ruled on Tuesday afternoon that SARS must provide Zuma’s tax records to two publications within 10 days.
The two publications brought an application to access the records, after the South African Revenue Service had refused their requests for access.
Davis rules that SARS must supply them with Zuma’s tax records for the periods between 2010 and 2018 and also ruled that sections of the Tax Administration Act and the Promotion of Access to Information Act, were unconstitutional.
Financial Mail wanted Zuma’s tax records, applying to the South African Revenue Service (SARS) under the Promotion of Access to Information Act (Paia).
But SARS said they couldn’t part with them due to secrecy provisions in that exact same act – Paia – which excludes tax records from information that is considered in the public interest, as well as the Tax Administration Act (TAA), which prohibits Sars from disclosing any taxpayer information to the public, including the media, who also aren’t allowed to report on this information even if they do obtain it.
Financial Mail editor Rob Rose said in a press release: “We believe the existing legislation to be unconstitutional, as it prevents us from obtaining information on the tax status of senior members of the executive – like former president Jacob Zuma – accused of serious crimes, including being tax delinquent. It restricts our ability to disseminate this vital information to the public.”
Zuma, the third respondent, did not oppose the application or file any court papers addressing the allegations that he evaded paying tax. Nor did he attempt to confirm that he was, in fact, tax compliant.
The case dealt with the tension, Davis noted, between the competing rights of privacy and the right to access to information, both of which are enshrined in the Bill of Rights.
Webber Wentzel’s Dario Milo, who is representing the media, said the application would not lead to blanket access to the tax records of the general public, and would only grant access to “senior government officials accused of wrongdoing” and “give journalists the freedom to report on it”.
In a 26-page judgment, however, Davis rejected the argument for blanket secrecy. He said it wasn’t a “universal truth” that without secrecy, tax administration can’t function properly. Some other countries, for example, have far fewer prohibitions on disclosing tax details, he pointed out.
“To put it bluntly, there is no direct or factual evidence that taxpayers in SA rather make disclosure of their affairs because of the secrecy provisions, as opposed to the coercion of the penalties and sanctions which follow upon nondisclosure.”
Davis ruled that a blanket prohibition on revealing taxpayer information, whatever the circumstances, “is not justified” under section 36 of the constitution. Those clauses in the Tax Administration Act which prevent information being given out under the access to information rules are “unconstitutional”, he said.
For good measure, he gave parliament two years to remedy the defects in both the Tax Administration Act and Paia.
AmaBhungane’s co-managing partner, Sam Sole, told Fin24 on Tuesday that the publication was “delighted with the judgment”.
Sole said the ruling removed the exemption that tax information enjoyed from the PAIA public interest override.
“This does not open the floodgates but provides for disclosure where the public interest clearly outweighs any harm, which it certainly does in this case. We think the social value of tax secrecy is exaggerated and mainly serves the powerful and not the community. This judgement begins to strike a better balance.”
Meanwhile former president Zuma has been hospitalised for a regular check-up,according to media reports.