Media houses take their battle for Zuma’s tax records to court

● Media organisations will be in court this week in a battle to see Jacob Zuma’s tax records.

The case also has a much wider significance: investigative journalism outfit amaBhungane and the Financial Mail want the Pretoria high court to strike down the whole scheme of legislation that prevents the media from ever accessing taxpayer information in the public interest.

The confidentiality of taxpayer information is regarded as a sacrosanct principle by the South African Revenue Service (Sars). It is believed to be absolutely critical to the effective collection of taxes and protects the privacy of taxpayers.

Under the law as it stands, tax information is excluded from the information that must be handed over under the Promotion of Access to Information Act (Paia), even if disclosure would be in the public interest.

Under the Tax Administration Act it is unlawful for anyone at Sars to disclose taxpayer information. It is also unlawful for anyone — including those in the media who somehow get such information — to disclose it further.

In written argument, Sars counsel Wim Trengove SC describes the covenant made between taxpayers and the revenue service under SA’s tax laws: “Taxpayers are compelled to disclose their secrets to Sars. They are required even to confess their own criminal conduct. They are stripped of their privilege against self-incrimination. In return for their full and frank disclosure, Sars promises to keep their secrets ... To then take their secret information and release it to the media and the public would be a travesty.”

The courts have already sent public protector Busisiwe Mkhwebane packing when she tried to subpoena Zuma’s tax records from Sars. But now amaBhungane and the Financial Mail say the relevant sections in Paia and the Tax Administration Act are unconstitutional, breaching the rights of freedom of expression and access to information. The media houses argue that the legislative scheme does not find the correct constitutional balance between the free expression rights and the right to privacy.

They say they are not attacking the principle of taxpayer confidentiality generally but the “ironclad” prohibition, with no exceptions, and which would mean that a Paia request for information would never succeed — even where there is a clear public interest.

Zuma’s tax records are a good illustration of why taxpayer information should be subject to a “limited exception”, says Steven Budlender SC in his written argument.

Uncontested evidence has come to light that the former president was not tax compliant and the Nugent commission of inquiry has found that the independence and competence of Sars had been deliberately undermined, he says.

“But because of the absolute prohibition on the release of taxpayer information, the media and the public to this day have no idea whether president Zuma was tax compliant and the role that this might have played in the attack on the revenue service,” says

Budlender.

He says the public interest override in Paia contains safeguards to ensure that most taxpayer information would still remain confidential: there can only be disclosure where it would reveal evidence of lawbreaking. Also, before any information can be given out, the benefit of disclosing would have to outweigh the harm of disclosing.

These factors would never be decided by the journalist asking for the information but by Sars or by a court, he says.

Budlender says that while Sars had claimed that this absolute confidentiality was essential for tax collection, it had not shown that this was so through evidence. However, this is strongly disputed in heads of argument from Afzal Mosam SC on behalf of finance minister Tito Mboweni, who is supporting Sars in this case.

Trengove also argues that SA’s legislative scheme is in “good company” as it is similar to tax information confidentiality regimes in many other countries, including Kenya, Canada and Germany.

He argues that the prohibition is not ironclad and that Sars does release the information to law enforcement, other government agencies and to courts. The “fine balance” between privacy and access to information struck by parliament is appropriate, he says.

Sars and Mboweni also say if the courts were to grant the order sought by amaBhungane and the Financial Mail it would put SA in breach of a number of international law agreements and conventions.

But, say the media houses, on this they are “wrong” for a number of reasons, including that the agreements only apply to the information obtained by Sars from other countries, not domestically.

The case is scheduled to be heard in the Pretoria high court on Thursday and Friday.

The public to this day have no idea whether Zuma was tax compliant

Steven Budlender SC

Counsel for amaBhungane and Financial Mail