The Public Protector has nonetheless not acquired affirmation from former president Jacob Zuma that she could entry his tax data — regardless of a tweet from Zuma’s twitter account in November.
Public Protector Busisiwe Mkhwebane and the commissioner of the South African Income Service (Sars), Edward Kieswetter, are in a courtroom battle after Kieswetter refused to offer Mkhwebane with the previous president’s tax info, saying it could be illegal.
When the dispute first emerged within the public area, in November 2019, Zuma entered the fray by way of Twitter, saying: “If the @PublicProtector desires to see my SARS data she is free to take action … if she desires my data, she should have them.”
However on Thursday, the Public Protector’s workplace confirmed that there was, as but, no affidavit from the previous president confirming that he consented to Sars handing over his tax data. Nor had Zuma sought to enter the continuing litigation, mentioned Sars’ legal professional.
“There’s nonetheless no confirmatory affidavit and we now have not pursued it however the possibility stays open,” mentioned the general public protector’s spokesperson, Oupa Segalwe.
In the meantime, Kieswetter mentioned, in his replying affidavit filed final month: “A tweet doesn’t qualify as taxpayer consent as required below the Tax Administration Act.”
Kieswetter and Mkhwebane disagree on whether or not, in regulation, the Public Protector has the ability to subpoena taxpayer info — usually handled as strictly confidential below the Tax Administration Act. Sars’s view is that taxpayer info could solely be supplied if there’s a courtroom order, or if the related taxpayer has given consent. Mkhwebane says that her constitutional powers and powers below the Public Protector Act enable her to subpoena the knowledge.
Mkhwebane is investigating a criticism from former Democratic Alliance chief Mmusi Maimane, that within the early interval of Zuma’s presidency he was receiving a R1-million month-to-month wage from Royal Safety CC, whose director on the time was reportedly Roy Moodley, a good friend of the previous president.
In her courtroom papers, Mkhwebane mentioned that she had tried to get an affidavit from Zuma to substantiate his tweet however this had proved logistically troublesome; and when she requested Sars’s legal professionals for extra time, they refused to increase the deadline.
Nevertheless, Kieswetter disputes this. He attaches correspondence between their two units of attorneys, reflecting that the explanation given for the request for extra time was that the general public protector’s senior counsel “was not able to settle our consumer’s [the Public Protector’s] answering affidavit”.
The commissioner’s legal professional, Reham Shamout, mentioned: “The request for an extension was not as a result of it was ‘logistically troublesome’ to realize in time ‘a confirmatory affidavit from President Zuma’.”
Kieswetter mentioned: “She [Mkhwebane] vaguely means that an try was made to acquire a confirmatory affidavit from him… She affords no info as to how — a letter, a name or an emissary — that is steered to have occurred. If her intimated contact with the previous President had been documented or in any other case corroborated, probably this might have been hooked up or in any other case corroborated.”
In his replying affidavit, Kieswetter additionally addressed the truth that Mkhwebane had gotten a second opinion on the proper authorized place from Muzi Sikhakhane SC, supporting her view.
However all this opinion confirmed, mentioned Kieswetter, was that there was certainly a “dwell dispute” on the regulation. Whereas Sikhakhane’s opinion supported Mkhwebane, an earlier opinion, obtained collectively by Sars and the general public protector from Hamilton Maenetje SC, supported Sars, he mentioned.
Kieswetter additionally steered that Sikhakhane was not supplied with Maenetje’s earlier written opinion, as Sikhakhane’s opinion didn’t interact with Maenetje’s. Nor did Mkhwebane disclose precisely what her transient to Sikhakhane was — “important I’m suggested, in contemplating the opinion rendered”.
Kieswetter added that, “primarily based on impartial authorized recommendation contemplating each opinions,” he “respectfully disagree[d]” with that Sikhakhane’s view was “right and preferable” to Maenetje’s.
He added that the general public protector had not given Sars the opinion from Sikhakhane and even mentioned something about it previous to the litigation. “There’s merely no supportable factual foundation for the bald competition that the Public Protector ‘did point out’ to me that she had sourced the opinion ready by Adv Sikhakhane SC. She by no means ‘indicated’ any such factor to me or Sars. Considerably she doesn’t recommend when, how and thru whom she ‘did point out’ this.”
The case is about all the way down to be heard on March 6.