Public Protector Busisiwe Mkhwebane is still mulling the possibility of appealing the North Gauteng High Court’s decision preventing her from accessing corruption-accused former president Jacob Zuma’s tax information, with the possibility of a constitutional challenge to the Tax Administration Act (TAA) now also in the mix.
The Constitutional Court on Tuesday did not grant Mkhwebane’s application for leave to appeal this ruling. In a unanimous decision, Justice Mbuyiseli Madlanga said: “This court takes the view that an appeal does not engage this court’s jurisdiction.”
The court did, however, grant Mkhwebane’s application for leave to appeal the personal costs handed down against her in the case.
Madlanga said the High Court’s ruling that she acted in bad faith “beggar’s belief”, adding there was no basis for the personal cost order and it should be set aside.
In a statement, Public Protector spokesperson Oupa Segalwe said Mkhwebane had noted and welcomed the judgment.
“Regarding the decision not to grant the Public Protector leave to directly appeal the High Court declarator and its dismissal of the Public Protector’s counter application, it needs to be emphasized that the Constitutional Court did not deal with the merits of the matter and therefore the appeal has not been decided.
“This means the door remains open for the Public Protector to approach the Supreme Court of Appeal as she feels strongly that the TAA or any other law for that matter can under no circumstances trump the Constitution,” Segalwe said.
He added Mkhwebane’s position on the matter remains that her office was entitled to have access to a taxpayer’s information for purposes of an investigation despite the provisions of Section 69(1) of the TAA since national legislation cannot trump the Constitution, from which her office draws its original investigative powers.
“With the help of her legal team, she will study the judgment and take legal advice on the way forward. As she does so, she will also consider the Constitutional Court’s advice on challenging the constitutionality of the TAA, particularly section [691)] thereof,” read Segalwe’s statement.
Madlanga was highly critical of the personal costs order handed down to Mkhwebane in this case.
He found the High Court, in justifying the personal costs order, did not show Mkhwebane exhibited egregious conduct or gross disregard for her professional responsibilities and the High Court had misdirected itself on facts, its conclusions of bad faith on Mkhwebane’s part amounted to a “leap in logic” and holding the Public Protector to an “unduly high and legally non-existent” standard.
“But it does mean that courts must be wary not to fall into the trap of thinking that the Public Protector is fair game for automatic personal costs awards,” Madlanga said.
“Personal costs orders may have a chilling effect on the exercise of the Public Protector’s powers, including litigating where necessary.”
According to Segalwe, this echoed and affirmed Mkhwebane’s long-held view on the issue.
Mkhwebane and the SA Revenue Service (SARS) have been engaged in a court battle over Zuma’s tax records after she unsuccessfully subpoenaed the records in October 2018.
In November, SARS launched an urgent court bid to block her access to Zuma’s tax information.
Mkhwebane argued she needed access to the information as part of an investigation.
Her probe follows a 2017 request from then-DA leader Mmusi Maimane to look into Zuma’s tax affairs after investigative journalist Jacques Pauw, in his book The President’s Keepers, stated the former president had received an R1 million salary from a private security company run by his associate, Roy Moodley, after he became president.
-The Citizen
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