Former president Jacob Zuma. File Picture: REUTERS
Former president Jacob Zuma. File Picture: REUTERS

The public is entitled to know whether Jacob Zuma’s tax affairs were in order during the time that he served as president, according to papers lodged in the high court in Pretoria.

Financial Mail and the amaBhungane Centre for Investigative Journalism have lodged an application for the court to grant journalists access to Zuma’s tax records.

The matter is separate from the one between the SA Revenue Service (Sars) and public protector Busisiwe Mkhwebane, who wants access to information and documents regarding any investigations conducted by the tax agency into the former president. That relates to her investigation into the allegation that Zuma received a monthly payment of R1m from Royal Security, owned by businessperson and ANC funder Roy Moodley, during the first months of Zuma’s presidency.

The Tax Administration Act does not allow Sars to disclose a taxpayer’s information, except to a limited number of public bodies, which does not include the public protector’s office.

The matter involving Mkhwebane has been referred to deputy judge president Aubrey Ledwaba for clarity on who Sars may provide confidential taxpayer information to. The case will be heard in March.

Financial Mail and amaBhungane are arguing that the separate matter involving Zuma’s tax records is in the public interest. Financial Mail journalist Warren Thompson said in an affidavit to the court that there was serious and credible evidence that Zuma’s tax affairs were not in order while he was president.

It has been alleged that he evaded tax, received income from sources other than his official presidential salary that he did not disclose, and that he received various fringe benefits that he has not paid tax on.

Thompson said that for Sars to function effectively, it is essential that the public have faith and trust in the tax authority's independence and objectivity.

“If the president does not give his fair share, the authority of Sars is fatally undermined. Every South African could fairly ask — if the president does not pay his taxes, why should I?”

This was why the question whether Zuma’s tax affairs were in order while he was president was important from the point of view of the public.

“If they were not in order, the public is entitled to know. This is in part so that it can ensure that those currently in office hold him to account. If they were in order, the public is entitled to know that too, so that concerns about Sars, it's independence and objectivity can be dispelled,” he said.

The application was brought after Thompson made a Promotion of Access to Information Act (PAIA) request earlier in 2019 to Sars for Zuma’s tax returns, for the years he served as president.

The request was refused on the basis that the Tax Administrative Act prevents Sars from disclosing any tax information to the media, even if disclosure is manifestly in the public interest.

Thompson, in his affidavit, argued that that prohibition is unconstitutional.

He said it was a clear limitation of the freedom of expression and the right to access to information, which was unjustifiable because it was “overboard and disproportionate”.

The applicants in the matter want the court to declare that both PAIA and the Tax Administration Act are unconstitutional to the extent that they do not permit access to a taxpayer’s information by a requester other than the concerned taxpayer, even if it is clearly in the public interest.

Secondly, the applicants also want to the court to extend the limited public interest exception in PAIA to taxpayer information, and replace Sars’s refusal of Thompson’s PAIA request with a decision to grant it.

quintalg@businesslive.co.za