The door remains open to appeal the Superior Court ruling on taxpayer information

CAPE TOWN – Public protector Busisiwe Mkhwebane on Tuesday accepted the Constitutional Court ruling that granted her permission to appeal a cost order imposed in the Pretoria High Court.

It was a mixed bag for the Mkhwebane as the ConCourt dismissed his offer of appeal related to his ability to subpoena taxpayer information. But the court agreed that it had grounds to challenge an order that she personally pay the costs in that matter.

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The appeal concerned a case in which he tried to access the tax records of former President Jacob Zuma.

Although the ConCourt refused to grant Mkhwebane direct access to appeal the High Court order that a South African Revenue Service (Sars) official has the right to withhold taxpayer information, it granted him permission to appeal the personal expenses order.

The High Court had ordered that she pay 15% of the Sars commissioners’ expenses out of her own pocket.

Mkhwebane spokesman Oupa Segalwe said the door for further legal action was still open.

“Regarding the decision not to grant the Public Protector the authorization to directly appeal the judgment of the Superior Court and its 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 [Tax Administration Act] or any other law in this regard cannot under any circumstances prevail over the Constitution, ”Segalwe said in a statement.

He added: “His position in this regard has always been and continues to be that his office has the right to have access to a taxpayer’s information for the purpose of an investigation despite the provisions of article 69 (1) of the TAA, since the National legislation cannot prevail over the Constitution. , from which his office draws its original investigative powers. With the help of your legal team, you will study the judgment and receive legal advice on the way forward. In doing so, it will also consider the advice of the Constitutional Court on the challenge of the constitutionality of the TAA, in particular section 69 (1) thereof ”.

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Mkhwebane also pointed out how in issuing the unanimous ruling, Judge Mbuyiseli Madlanga took time to criticize the High Court for reaching conclusions about Mkhwebane regarding personal costs.

“He noted that the supreme court to date had dealt with four cases in which personal costs against the Public Protector were an issue, adding that the last of those cases involved the Minister of Public Enterprises, Pravin Gordhan. He said that, in the Gordhan case, the High Court “did not even begin” to conduct an investigation into what justified the personal costs order, “the statement read.

“Judge Madlanga said that the High Court, in trying to justify the personal costs order, did not show that Attorney Mkhwebane exhibited egregious conduct or flagrant disregard for her professional responsibilities and that, instead, the High Court strayed from the facts, the Advocate Mkhwebane party drew conclusions in bad faith whose conclusions amounted to a ‘leap in logic’ and wanted to hold the Public Protector to a standard that has never been part of South African law, a standard that is’ unduly high and legally non-existent. ‘ “

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