The Sars Orlando East branch in Soweto on 12 July 2022. | Sars commissionerEdward Kieswetter in Cape Town on 22 February 2023. | Former president Jacob Zuma addresses MK party supporters at Alexandra Stadium on 7 February 2024. It was early 2019 when Warren Thompson, a journalist working at the Financial Mail, first hit upon the idea of tilting at a long-standing tax principle that had evolved into widely accepted economic dogma.
“I figured that right here is the perfect example of how these access to information laws can be used to confirm, once and for all, whether the head of state had really abused his position,” recalls Thompson, who now works at Finance Uncovered in London. But in November 2021, North Gauteng High Court judge Norman Davis declared that actually it was unconstitutional for the access to information laws not to have a “public interest override” in tax matters. As a result, if the public interest case could be made sufficiently, the media houses ought to be given access to Zuma’s tax records.
It was vital, Kollapen said, not to “elevate taxpayer confidentially to some sacrosanct place where no exception to enable public access to it is possible. And yet, intriguingly, Sars said that when it came to Zuma’s links with Royal Security – Roy Moodley’s company which Pauw said had paid Zuma a monthly retainer – these records either “cannot be found and/or did not exist”.
Well, no – the publications have now approached the Information Regulator, a body set up three years ago to hear appeals for decisions like this, to force Sars’s hand. Kieswetter argues that the Constitutional Court judgment doesn’t simply set aside the confidentiality provisions, but rather puts in place a high threshold to meet for anyone wanting someone’s taxpayer records. In other words, the court said Sars must consider very specific factors when it gets a request – whether disclosure shows someone had broken the law, whether it shows an imminent risk to public safety, and that the public interest should “clearly outweigh the harm”.
It’s vital, however, to counter the misconceptions about this legal change. In particular, the original court case was distorted by critics to make it seem like an attempt to “make everyone’s tax information public”. It’s nothing like that, says Dario Milo, a partner at Webber Wentzel which has poured a vast amount of time and energy into acting for the media houses in this case pro bono, recognising the value of this particular case to society.
Source: Law Daily Report (lawdailyreport.net)
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