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Public protector Busisiwe Mkhwebane. (Jan Gerber / News24)
- Public protector Busisiwe Mkhwebane is considering appealing a High Court ruling that prevented her from accessing former President Jacob Zuma’s tax information.
- This after the Constitutional Court ruled that it is not within its competence to decide on an appeal.
- Mkhwebane welcomed that the Constitutional Court annulled a personal costs order against him in firm terms.
The public protector Busisiwe Mkhwebane is still considering the possibility of appealing the decision of the Northern Gauteng Superior Court that prevents her from accessing the tax information of former president Jacob Zuma accused of corruption, with the possibility of a constitutional challenge of the Administration Law Tax (TAA) now also in the mix.
On Tuesday, the Constitutional Court did not grant Mkhwebane’s request for permission to appeal this ruling. In a unanimous decision, Judge Mbuyiseli Madlanga said: “This court considers that an appeal does not affect the jurisdiction of this court.”
However, the court granted Mkhwebane’s request for authorization to appeal the personal costs imposed against him in the case.
Madlanga said the High Court ruling that he acted in bad faith “in the belief of a beggar,” adding that there was no basis for the personal expenses order and that it should be set aside.
In a statement, Public Protector spokesman Oupa Segalwe said Mkhwebane had taken note of the ruling and welcomed it.
READ | A victory and a defeat for Public Protector Mkhwebane in the Constitutional Court
“Regarding the decision not to grant the Public Protector the authorization to appeal directly to the declarant of the Superior Court and his dismissal of the counter-claim of the Public Protector, it is necessary to emphasize that the Constitutional Court did not address the merits of the matter and therefore the appeal has not been decided.
“This means that the door remains open for the public protector to approach the Supreme Court of Appeals, as she firmly believes that the TAA or any other law on that issue cannot under any circumstances prevail over the Constitution,” Segalwe said.
He added that Mkhwebane’s position on the matter remains that his office had the right to have access to a taxpayer’s information for the purposes of an investigation despite the provisions of Section 69 (1) of the TAA, as the legislation National cannot prevail over the Constitution, on which its office is based. his original investigative powers.
“With the help of your legal team, you will study the judgment and receive legal advice on the way forward. As you do so, you will also consider the advice of the Constitutional Court on challenging the constitutionality of the TAA, particularly the section [691)] of the same, “the Segalwe statement reads.
Madlanga was highly critical of Mkhwebane’s personal expense order in this case.
It found that the High Court, in justifying the personal costs order, failed to show that Mkhwebane exhibited egregious conduct or flagrant disregard for his professional responsibilities and that the High Court had deviated from the facts, its findings in bad faith on the part of Mkhwebane amounted to a “leap in logic” and holding the Public Protector to an “unduly high and legally non-existent” standard.
“But it does mean that the courts must be careful not to fall into the trap of thinking that the Public Protector is fair game for automatic awards of personal costs,” Madlanga said.
“Personal costs orders can have a paralyzing effect on the exercise of the powers of the Public Protector, including litigation when necessary.”
According to Segalwe, this echoed and affirmed Mkhwebane’s long-standing vision on the issue.
Mkhwebane and the SA Revenue Service (SARS) have been involved in a court battle over Zuma’s tax records after she unsuccessfully subpoenaed the records in October 2018.
In November, SARS launched an urgent lawsuit to block his access to Zuma’s tax information.
Mkhwebane argued that he needed to access the information as part of an investigation.
His investigation follows a 2017 request from then-DA leader Mmusi Maimane to investigate Zuma’s tax affairs after investigative journalist Jacques Pauw, in his book. President’s Guardians, stated that the former president had received a salary of one million rand from a private security company run by his partner, Roy Moodley, after he assumed the presidency.
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