Top court to allow public access to taxpayer data under certain conditions

The Constitutional Court has found that sections of the Tax Administration Act and the Promotion of Access to Information Act are unconstitutional because they create an absolute bar on the public being able to access taxpayer information.

Before taxpayer information was always kept strictly confidential. The judgment now opens the door to public access — under extremely limited circumstances.

In a majority decision, justice Jody Kollapen said the legislative scheme put an absolute bar in place. This “cannot be said to be reasonable and justifiable in an open and democratic society”, Kollapen said.

The court order gave parliament two years to amend the legislation to bring it into line with the constitution. In the interim, it must be read to allow for public access to taxpayer information — but in very limited circumstances: Sars must disclose the information in the public interest if the disclosure would reveal “a substantial contravention of, or failure to comply with the law” or “an imminent and serious public safety or environmental risk”.

In addition, there must be another factor present: that the public interest in disclosure must outweigh the harm contemplated by the Tax Administration Act in keeping taxpayer information confidential.   

The case arose out of an application for former president Jacob Zuma’s tax records from 2010 to 2018 on the basis of evidence from Jacques Pauw’s book The President’s Keepers that he was not tax compliant.

While the high court had ordered Zuma’s tax records be made available within 10 days, the Constitutional Court ordered this request must be considered “afresh in the light of this order”. 

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