‘I won’t break law to deal with perception’
Sars boss Edward Kieswetter firm on not releasing Zuma tax records in spite of top court’s secrecy ruling
I serve South Africa, I serve the public, I do not serve the media, or politicians, or business people. I serve my conscience and I serve the law
South African Revenue Service (Sars) commissioner Edward Kieswetter says he won’t budge on his refusal to release former president Jacob Zuma’s tax records despite a Constitutional Court ruling that blanket tax secrecy is unconstitutional.
“The Constitutional Court ruling is not an open-ended instruction for us to give information whenever it is requested. There’s a clear set of criteria that we have to apply.”
Investigative journalism organisation amaBhungane and the Financial Mail, which have been fighting for the release of Zuma’s tax records since 2019 and hailed the Constitutional Court’s May 2023 ruling as a victory for transparency and accountability, have referred Sars’s refusal to the Information Regulator on appeal. Kieswetter is unapologetic. “I don’t serve the interests of transparency and accountability by appeasing amaBhungane or political opponents of Zuma, I do it by remaining absolutely true to what the law requires me to do.”
He is only compelled to disclose tax records if disclosure would reveal evidence of a substantial contravention of the law, he says.
“I don’t care what you think of a particular taxpayer. If the records we have do not contain evidence of a crime I am under no obligation to give you the records.”
In its bid for the release of Zuma’s tax records under the Promotion of Access to Information Act, amaBhungane argued that there was “serious and credible” evidence that Zuma was not tax compliant during his years as president.
“If amaBhungane has evidence — remember these people claim their evidence is a book written by Jacques Pauw, and as we know a book is not evidence — why don’t they take Jacques Pauw to court? That would be a far easier route to the evidence than Sars. “As Edward Kieswetter, who has an interest in fixing South Africa and dealing with crime and corruption, I would love to share what I see that comes across my desk. But that would be an abuse of my privileged access to records that no-one else has, and that’s why the law makes it so difficult for the commissioner to reveal information.”
He says his first step as commissioner when information is requested must be to ascertain if what Sars has on file will reveal that a substantial contravention in law has taken place or there was a failure to comply with the law.
“The team I put in place looks at the records and asks a simple question: if we revealed these records, would it provide evidence that a crime was committed? If not, then there is no basis for me to reveal the records to you. It doesn’t mean a crime hasn’t taken place, just that the records I have don’t reveal that.”
Shouldn’t experienced investigative journalists working in the public interest have a right to see the records and decide for themselves?
“No member of the public has a right, for frivolous reasons, to get access to your records, because there might be other information that is personal and private and bona fide.”
If amaBhungane has “serious and credible” evidence that Zuma was not tax compliant during his years as president then they don’t need to see the Sars records, he says. They must bypass Sars completely and take that evidence to the prosecutor.
“The fact is they are fishing for evidence, and one of the ponds they are fishing in is the Sars pond. I can’t allow fishing expeditions for any reason, even under the guise of public interest.”
Isn’t it in the interests of Sars to counter perceptions that it is not proactive enough in pursuing the well-connected and powerful for tax evasion?
“I cannot respond to perceptions to the point where I break the law. I administer the law, I don’t administer perceptions. I also administer tax confidentiality no matter who it is, and can’t have a differentiated approach because I want to manage perceptions.”
Doesn’t the perception that certain politically connected individuals are getting away with not paying all the taxes they owe encourage taxpayer cynicism and noncompliance?
“I will not break the law to deal with a perception. Nor will I be judged because some constituents in society have a thesis and want to prove it come hell or high water. I will not be a servant to any constituency in this country. I serve South Africa, I serve the public, I do not serve the media, or politicians, or business people. I serve my conscience and I serve the law.
“If I can’t do that I must walk, and I will walk,” says Kieswetter, who has agreed to stay on as commissioner for another two years after the expiry of his five-year term in March.
The initial request for Zuma’s tax records was followed by a supplementary request after the Constitutional Court’s May 2023 ruling. On both occasions Sars failed to get Zuma’s written consent to release his records.
“After we received the supplementary request we went back to the taxpayer to inform him of this and ask if he has changed his mind, does he want to give consent. Because if he gives consent then all of this goes away. If there is no consent we can’t release the records.”
The process then, which he followed, is to create an internal governance committee of senior Sars officials to apply their minds, look at the court finding and see if the request persuades them that a disclosure must be made.
“Because nobody’s going to protect me if a taxpayer takes me to court and I am personally on the line because I have breached taxpayer confidentiality.”
Doesn’t it ring alarm bells for Sars if someone named as a “person of interest” by the Zondo commission refuses to consent to the release of his tax records?
“I don’t care if it does. I’m not here to fuel your thesis or the thesis of the media or even my own thesis. The fact is every individual has the right to refuse to have his records released. I can’t make a judgment on that.
“As the commissioner I have to respect the fact that you’ve said no, and look for another basis for releasing the records. If I can’t find a basis I can’t release the records.”