Public protector argues for power to subpoena tax information
The primary pathway for the public protector to obtain information from the SA Revenue Service is directly from Sars and not through secondary, alternative means.
This is one of the arguments proffered by public protector Busisiwe Mkhwebane’s counsel, Dali Mpofu SC, yesterday, in her application for leave to appeal before the Constitutional Court.
The public protector seeks to appeal against an order of the Pretoria high court passed in March, which held that her subpoena powers do not extend to taxpayer information.
The matter began in 2018 after Mkhwebane sought access to former president Jacob Zuma’s tax records.
Mkhwebane believed that Section 7(4) of the Public Protector Act — which states that the public protector may direct any person to produce any document — applied without exception.
Sars commissioner Edward Kieswetter refused to give her information on Zuma, saying the Tax Administration Act prohibited Sars from releasing the information to the public protector.
He said there were other means by which the public protector could obtain the information, including from the taxpayer or by obtaining a court order.
Addressing the Constitutional Court yesterday, Mpofu said there was clearly a hierarchy of pathways in obtaining information sought by the public protector.
Mpofu said if the subpoena route contained in Section 7(4) was available, why would the public protector waste money and clog the court system for something that was available to her through legislation.
Justice Leona Theron put it to him that the Tax Administration Act provided exceptions whereby certain entities could be provided with tax information and the public protector was not one of those.
She said if the public protector became one, it would mean the court would be reading in an additional entity not mentioned by the legislature.
Mpofu asked the court to interpret the act to include the public protector as one of the entities that must be entitled to obtain information from Sars.
The hearing continues.