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Former president Jacob Zuma cannot give permission for the Public Protector Busisiwe Mkhwebane to access his tax records via the SA Revenue Service, and the affidavit he released to this effect was not only late, but weakened, rather than strengthened her case, the Pretoria High Court heard on Friday.
Jeremy Gauntlett, acting for SA Revenue Service Commissioner Edward Kieswetter, told the court that the former president was in no position to grant permission to Mkhwebane to access his tax records on his own behalf.
The Public Protector and the revenue service have been engaged in a court battle over the former president's tax records after Mkhwebane subpoenaed the records in October 2018. In November, SARS launched an urgent court bid to block Mkhwebane's access to Zuma's tax information.
Mkhwebane says she needs access to Zuma's tax information as part of an investigation. Her probe follows a 2017 request from then-Democratic Alliance leader Mmusi Maimane to look into Zuma's tax affairs after investigative journalist Jacques Pauw, in his book The President's Keepers, stated that the former president had received a R1 million salary from a private security company run by his associate Roy Moodley after he became president.
Kieswetter has argued the public protector's subpoena powers should not extend to accessing taxpayer records, citing taxpayer confidentiality. Analysts, meanwhile, say the case could be precedent-setting. It comes amid escalating tension between the Public Protector and the revenue service.
Late on Thursday this week, Zuma filed an affidavit stating that he was happy for Mkhwebane to access his tax records. This follows an earlier claim from Kieswetter that that there was no legal proof earlier tweets which had ostensibly come from Zuma in support of Mkhwebane were really from the former president.
Zuma also reportedly said in his affidavit that he had "no legal interest" in the outcome of the matter.
On Friday, Gauntlett told the court that Zuma's "surprise" affidavit was not submitted timeously and therefore could not be admitted as evidence before the court.
'Non-affidavit'
"Papers were filed around the application on 7 November last year, so as of tomorrow, it's four months. This is a non-affidavit. Where is the explanation of why it has taken Mr Zuma four months to come up with this?" he asked.
"What we are told in a few paragraphs is that at times, he has been ill. We cannot accept his say-so. There was a judgment or ruling by another high court which rejected a sick note that he produced in other circumstances," said Gauntlett, referring to the medical certificate Zuma's lawyers handed to the Pietermaritzburg High Court to excuse him from his corruption pre-trial.
On Twitter last year, Zuma said he was more than willing to make his records available to the Public Protector.
It must be known that I have nothing to hide. If the @PublicProtector wants to see my SARS records she is free to do so. We should not make the job of the PP difficult. If she wants my records, she must have them.
— Jacob G Zuma (@PresJGZuma) November 12, 2019
In his tweet, the former president said, "It must be known that I have nothing to hide. If the Public Protector wants to see my SARS records she is free to do so. We should not make the job of the PP difficult. If she wants my records, she must have them."
I hear that my SARS records are being contested in court by Kieswetter. No one has consulted me about this matter. Furthermore, I have been informed that the office requesting these records is the office of the @PublicProtector (PP) @AdvBMkhwebane
— Jacob G Zuma (@PresJGZuma) November 12, 2019
Mkhwebane's legal team has argued that her office has wide-ranging powers which allow her to subpoena any information that will assist her in conducting an investigation, according to Section 7 of the Public Protector Act.
"SARS and other organs of state have the constitutional obligation to assist and protect the public protector," said Mkhwebane's lawyer, Dali Mpofu, on Friday.
But according to Gauntlett, the Tax Act does not provide the public protector with constitutional powers to access tax records, and there are other avenues she can pursue for such information.
Gauntlett wanted to know why she had not first tried to obtain the information directly from Zuma, before issuing the tax agency with a subpoena.
He said the affidavit "only served to constitute significant shot in the public protector’s own foot" since there were other sources she could have approached.
Judge Peter Mabuse reserved judgement until March 23.
- Additional reporting by Marelise van der Merwe
