[ad_1]
Public protector Busisiwe Mkhwebane was again censored on Tuesday, when the Constitutional Court dismissed her request for permission to appeal against a High Court ruling that it was unable to compel the South African Revenue Service (Sars) to hand over confidential taxpayer information. .
Judge Mbuyiseli Madlanga, who wrote the Supreme Court ruling, said the urgency of the request was “artificial” and that it had no prospect of success.
However, she did overturn the personal expenses order that she was slapped with in Superior Court.
In March, the North Gauteng Superior Court ruled that Sars had the right to refuse to release the information in question to the Public Protector and ordered him to pay a percentage of Sars’s legal costs, out of his own pocket. This is due to a prolonged tug of war between the two over former President Jacob Zuma’s tax records.
Mkhwebane had attempted to cite the information in question in late 2018. This as part of an investigation into allegations that during the early days of his presidency, Zuma had been on the payroll of Royal Security, a KwaZulu-Natal-based company. owned by controversial Durban. businessman Roy Moodley.
In the Constitutional Court, he had argued that he needed to finish the investigation expeditiously and therefore the case was urgent. But on Tuesday, Madlanga didn’t buy it.
ALSO READ: Another blow to Mkhwebane as High Court annuls rogue unit report
“In my opinion, if the expedition were a consideration, the public protector would not have embarked on a test-of-power expedition, venturing into uncertain and unknown territory,” he said.
“She could have simply obtained the written consent of the taxpayer… It appears that former President Zuma was willing to provide such consent. And in the unlikely event that consent was denied, the public protector could have requested a court order … If her reasons for needing the information were compelling enough, and she suggests they are, this alternative would have been more suitable for deliver the desired file. results “.
As for the merits of his appeal, Madlanga said the Tax Administration Law (TAA) was clear.
“The TAA states that the Sars must preserve the secrecy of taxpayer information and cannot reveal taxpayer information to a person who is not an official of the Sars. Then the law creates narrow exceptions to this prohibition. Disclosure of taxpayer information pursuant to a subpoena issued by the public protector is not one of the exceptions. “
Madlanga said the public protector cannot “just want the legislation removed.”
However, he said that while his opinion that he was entitled to issue a subpoena had been “wrong”, it appeared to have been “genuinely upheld”.
And it found that the High Court had been “wrong” in issuing a personal costs order against Mkhwebane.
“The Superior Court was wrong in holding that the Public Protector was expected to act with a” high degree of perfection. ” That standard has never been part of our law, “he said, adding that if it were, it would make public office” extremely dangerous from a financial point of view. “
“The Superior Court held the Public Protector to an unduly high and legally non-existent standard,” Madlanga said.
He noted the “growing trend” of seeking personal cost orders in cases involving the public protector.
“Courts must be careful not to fall into the trap of thinking that the public protector is a fair game for compensation for personal costs, considering the paralyzing effects that these orders can have on the exercise of the powers of the public protector,” he said Madlanga.
He warned that the Judicial Power “contributes to the weakening” of the Ombudsman’s Office, by awarding compensation for “indefensible” personal expenses.
“You weaken that office, you weaken our constitutional democracy,” he said.
See the sentence handed down below:
For more news your way, download The Citizen app to iOS and Android.
[ad_2]
