Busi tells ConCourt the PP Act has an elevated status
The public protector is an important constitutional institution. But she gets “no special elevated status. She is under the constitution and the law,” counsel for the South African Revenue Service (Sars) told the Constitutional Court this week.
Sars was battling with public protector Busisiwe Mkhwebane in the highest court over whether she has the power to subpoena tax records, which the law has always treated as highly confidential.
A decision that she may access these records with a subpoena, without even having to go to court first as Sars argued, would put a huge, new power into her hands.
The powers of the public protector were already given an enormous boost in 2016 when the ConCourt famously clarified in its Nkandla decision that the remedial action of the public protector is binding, unless it is set aside by a court.
The judgment — widely celebrated at the time when there seemed little accountability on the part of the government — was followed by a serious flex of her new muscles by then public protector Thuli Madonsela with the litigation around her “State of Capture” report.
Mkhwebane’s big flexes have so far been less successful. She has lost many of her court cases, though not all, with judgments reining her in either by finding she had acted unlawfully or by defining the limits of her powers.
In May, the ConCourt said there was no special test when it came to getting an interim interdict against the public protector’s remedial action. Coming later this month is one of the hottest potatoes: President Cyril Ramaphosa and Mkhwebane will face off in the ConCourt over her #CR17/Bosasa report in which she found that Ramaphosa deliberately misled parliament about a donation to his CR17 campaign from Bosasa’s Gavin Watson.
Her report also said there was “merit” to a suspicion of money laundering after detailing transfers of millions of rands between the campaign’s bank accounts.
This week’s legal battle started last year when Mkhwebane sought to subpoena the tax records of Jacob Zuma following a complaint that he had been drawing a salary from businessman Roy Moodley’s company, Royal Security, in the early months of his presidency.
But Mkhwebane’s counsel, Dali Mpofu SC, said the case was about a bigger legal question.
The Tax Administration Act prohibits Sars from handing over confidential taxpayer information except to certain specific, listed offices and in certain specific circumstances. The public protector is not on this list.
Mpofu argued that the Public Protector Act gives the protector the power to “direct any person” to “produce any document” bearing on an investigation. This power was not an ordinary legislative power, he argued, but one that derived from the constitution itself since the act was “umbilically connected” to the public protector’s constitutional powers. And constitutional provisions must always trump those in ordinary laws. The law should be interpreted in such a way that the protector should be seen as one of the people on the list, he argued.
Mpofu faced intense scrutiny from a number of the justices on this point. Justice Chris Jafta said he understood the link between the Public Protector Act and the constitution. “What I don’t appreciate is a proposition that suggests that the Public
Protector Act is part of the constitution to which the principle of constitutional supremacy applies. That is my difficulty.”
Jafta said there were a number of laws that derived their mandate from the constitution, such as the Labour Relations Act and the Promotion of Administrative Justice Act. But while they could contain a power that would give effect to rights in the constitution, “it doesn’t become part of the constitution”.
Mpofu said he was not saying it became part of the constitution but it became “elevated”, a “mezzanine” provision.
Jeremy Gauntlett SC QC, counsel for Sars, described this as a “no-man’s land”; either you were in the constitution or in national legislation, he said. The ConCourt had previously looked at legislation that was specifically enacted to give effect to constitutional rights. It had decided that if the national legislation had shortcomings, there was no going around it — you had to attack its constitutionality. This the public protector had not done, he said.
“If national legislation doesn’t do its job, if it overlaps or underlaps, then as a litigant you have to step up to the plate ... and squarely attack it.”
Gauntlett said the Nkandla judgment did not give the public protector special status over other chapter nine constitutional institutions.
“We respectfully submit that this court in EFF/Nkandla meant to vindicate her status as against impermissible inroads on it — by parliament, by several ministers and the head of state. And this court protected her powers and protected her function.”
But this did not make the public protector an “apex” chapter nine institution, he said. “The public protector is an important chapter nine institution. She is in there. But in terms of constitutional standing, there is no pre-eminence, she gets no special elevated status. She is under the constitution and under the law.”
Mpofu argued that the constitution did give the public protector a wider jurisdiction and “more teeth” than other chapter nine institutions.
Judgment was reserved.