Dali Mpofu. Picture: SOWETAN
Dali Mpofu. Picture: SOWETAN

Public protector Busisiwe Mkhwebane’s advocate has slammed any suggestion that she didn’t need to persist with her subpoena for former president Jacob Zuma’s tax information, because she could access that information from Zuma himself.

Advocate Dali Mpofu was responding to Sars advocate Jeremy Gauntlett’s scathing assessment of an affidavit filed on Thursday by Zuma. In the affidavit, Zuma confirms that he wrote the tweet giving Mkhwebane access to his confidential tax records.

Gauntlett had argued on Friday morning in the same court that the affidavit was filed four months late, and should not be admitted into evidence. If it was, Gauntlett argued that the affidavit in fact “destroyed” Mkhwebane’s case, because the affidavit showed that the public protector had other options, besides the drastic use of a subpoena to access Zuma’s tax information.

Mpofu hit back on Friday afternoon, stating that Zuma’s affidavit contained no confirmation that he had the information Mkhwebane was seeking and that the information was “in my cupboard or in my drawer”.

“What Zuma was actually saying was, ‘I’m giving the commissioner permission to do his constitutional duty’,” said Mpofu. He rejected the Sars argument that it was legally unable to hand over any taxpayer information, without being ordered to do so by a court order, under the provisions of the Tax Administration Act (TAA).

Mpofu contended that Mkhwebane derived her subpoena powers from the constitution — and that the constitution “clearly trumps” the TAA. “[The public protector] honestly needs this information to combat corruption and protect the public. Because she’s the public protector,” Mpofu said. 

[Jeremy] Gauntlett argued that Mkhwebane appeared to believe that ‘in the pantheon of Chapter 9 institutions, she is the top one’

Mkhwebane is seeking Zuma’s tax records as part of her investigation into claims that he received monthly payments of R1m from Royal Security — a company headed by politically connected businessman Roy Moodley — in the first few months of his term.

Then DA leader Mmusi Maimane asked Mkhwebane to investigate these allegations shortly after the release of journalist Jacques Pauw’s book, The President’s Keepers, making the allegations. She first subpoenaed Zuma’s tax records in October 2018.

High stakes

The stakes for both Sars and the public protector are high. The revenue service is already struggling with rebuilding fallen levels of taxpayer compliance. This could be worsened if taxpayers believe that their confidentiality is not being adequately protected. 

Mkhwebane is currently facing the prospect of an inquiry into her fitness to hold office and cannot afford any potentially adverse court ruling against her — after a string of scathing judgments raised serious questions about her integrity, impartiality and grasp of the law.  

Sars commissioner Edward Kieswetter maintains that he was forced to turn to the courts for help after Mkhwebane threatened him with criminal charges, should he not provide her with Zuma’s tax records. Mkhwebane’s office has, in turn, publicly stated that a 12-month prison sentence and R40,000 fine could be the punishments imposed, should the tax records demandedfrom Sars be withheld from her.

Gauntlett also argued that Zuma could not give consent for the release of Sars’s own investigation material on his tax records. As a consequence, he argued, Zuma’s affidavit was “simply not competent”.

Gauntlett further contended that Zuma’s four-page statement had been filed “hopelessly” late and should not be admitted into evidence. Zuma said he filed the affidavit late due to “serious” health problems.

Mkhwebane also demanded statements from Sars about the allegations — contained in Pauw’s book — that Zuma received monthly payments of R1m from the politically connected Royal Security company.

Gauntlett argued that Mkhwebane appeared to believe that “in the pantheon of Chapter 9 institutions, she is the top one”. This was a “dangerous misnomer”, Gauntlett said, stressing that there was no legal basis for Mkhwebane’s assertions.

Mpofu, for Mkhwebane, was to respond to Gauntlett’s argument before judge Peter Mabuse later on Friday morning.

Gauntlett said Zuma’s affidavit “shows that to an unknown extent, information could have been obtained by him”. Applying for a subpoena under such conditions — in which a subpoena is intended to be “an absolute last resort” — was clearly not appropriate.

Gauntlett asked why Mkhwebane had not provided an affidavit confirming that she had not first tried to obtain information from Zuma, before subpoenaing Sars. Gauntlett made it clear that the revenue service did not accept Zuma’s explanation about why he filed his affidavit in the Sars-public protector dispute four months late.

Gauntlett pointed out that the high court in Pietermaritzburg did not accept Zuma’s alleged sick note as adequate proof that he was sick and receiving treatment overseas, and therefore unable to attend his corruption trial, saying: “This court is being trifled with.” 

Update: March 6 2020
This article has been substantially updated with comment from various parties.