Revenue service Sars is bound by law to preserve the secrecy of taxpayers’ information and legislation prevents it from being shared with the public protector.
Sars made this submission in the high court in Pretoria on Friday when it applied for an order declaring that the public protector’s subpoena powers do not extend to taxpayer records.
Sars sought the order after a request by the public protector in 2018 for former president Jacob Zuma’s tax records.
Public protector Busisiwe Mkhwebane sought them as part of her investigation into claims that Zuma received monthly payments of R1m from the Royal Security company, headed by politically connected businessman Roy Moodley, in the first few months of his term in 2009.
Arguing on behalf of Sars, Jeremy Gauntlett SC said there were limited instances in the Tax Administration Act that allowed Sars to release taxpayer information to others.
These included cases where Sars officials were acting in the course of performing their duties under the Tax Act, including to the police and the prosecuting service, or by order of the high court, or if the information was public information.
Gauntlett said, however, that a court may not grant an order compelling the release of taxpayer information unless it is was satisfied the information could not be obtained elsewhere.
Gauntlett said the public protector had not sought the information from other sources, including from Zuma, who had in fact offered to release his tax information to Mkhwebane.
Gauntlett said the Tax Administration Act gave specified entities the right to receive confidential taxpayer information from Sars.
These include the statistician general, commissions of inquiry, the Financial Intelligence Centre and the National Credit Regulator.
“Her [office] is not one of those listed under the act,” Gauntlett said.
However, Dali Mpofu SC, appearing for the public protector, said the order sought by Sars should not be granted.
Mpofu said the constitution was the supreme law.
He said if there was a clash between the provisions of the constitution and the provisions of the Tax Administration Act, the constitution must prevail.
Mpofu said section 182 of the constitution required that other organs of state must assist and protect Chapter 9 institutions, including the public protector, to ensure their dignity and effectiveness.
“This means that others, including Sars, have a constitutional duty to assist the public protector,” Mpofu said.
Mpofu said the provisions of the Tax Administration Act cannot trump the provisions of the constitution.
“On what basis can Sars breach and violate the constitution simply on a whim of national legislation which provides so many escape routes for not assisting the public protector?” Mpofu asked.