.amaBhungane one of the parties in the case involving former President Jacob Zuma's tax information, tackles five misconceptions about an important and carefully balanced judgment
The court ruling that former president Jacob Zuma hand over tax information has prompted a flurry of public debate
Say, for instance, where a former president is alleged to have flouted the country’s tax laws during his term of office. The legal regime set out in the Tax Administration Act and the Promotion of Access to Information Act provides that information submitted to SARS is generally not disclosable, subject to a few limited exceptions, usually only as part of tax recovery proceedings.apply to the TAA’s non-disclosure rules.
Clearly, the public has an interest in knowing if this was the case, and if so, the extent of the wrongdoing. Davis' judgment recognises the"general consensus that the general limitation of access to taxpayer information held by SARS, imposed by a law of general application , is justified in an open and free democratic society".
The effect of this is that the average law-abiding taxpayer would have no reason to expect their tax information to be made public. Nor would the averageSo no, your tax records will not be splashed around the media as a result of this ruling. Unless, of course, you are a person in a position of power involved in rather serious malfeasance, and – crucially – the public interest in knowing about your tax affairs is so great that it justifies limiting your privacy.
It bears considering whether tax information should be treated differently to any other sensitive information. Is it somehow more deserving of confidentiality than, say, the content of hearings by asylum-seekers, which the Constitutional CourtWhat about information that comes to light during divorce proceedings? Such information is extremely personal to the parties, potentially revealing intimate details of their lives.
The PPA grants the public protector certain subpoena powers to compel persons to provide information under pain of criminal sanction – unless they have just cause to refuse. In July this year, the High Court refused to grant the unsealing order, due to several defects in the EFF’s case. These include the EFF"fail[ing] to adequately state on the papers how its rights had been affected, if at all". Further, the EFF had not responded to Judge Aubrey Ledwaba’s call for any party that wished to challenge the sealing directive to do so – and once sealed, the record no longer formed part of the court record.
The CR17 matter was therefore not squarely about the balancing of rights, as was our tax records litigation.
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