Concourt rules sections of PAIA and Tax Administration Act unconstitutional

paia
12 Jun 2023

Concourt rules sections of PAIA and Tax Administration Act unconstitutional: SARS must grant access to former President Zuma’s tax records

In 2019, Warren Thompson, a financial journalist, applied under the Promotion of Access to Information Act 2 of 2000 (PAIA) to gain access to the tax records of former President Jacob Zuma. This application was prompted by allegations made in Jacques Pauw’s book, “The President’s Keeper,” and subsequent support from other sources. The allegations suggested that Mr Zuma had evaded tax, failed to disclose additional income sources, and neglected tax obligations related to fringe benefits during his presidency.

SARS initially denied Thompson’s application, citing Mr Zuma’s confidentiality entitlement under PAIA’s sections 34(1) and 35(1), as well as section 69(1) of the Tax Administration Act 28 of 2011 (TAA). Thompson appealed internally, but SARS dismissed the appeal on the same grounds. Consequently, Thompson and others filed a legal application in the High Court, seeking a determination on the extent of protection for tax information under PAIA.

The applicants aimed to challenge the constitutionality of the statutory prohibition against disclosing a taxpayer’s tax information held by SARS. They argued that the prohibition should not be absolute when disclosure would reveal substantial legal violations and be in the public interest.

The relief sought from the High Court included:

(a) A declaration of unconstitutionality for sections of PAIA and TAA that prevent access to a taxpayer’s tax information under PAIA by requesters other than the taxpayer, even when disclosure is clearly in the public interest.

(b) A “reading-in” remedy to expand the limited public interest exception in PAIA, allowing broader access to tax information when disclosure serves the public interest.

(c) An order granting access to Mr Zuma’s relevant tax records that relate to the allegations and their implications for the public interest.

The High Court granted the relief, and on appeal, the Constitutional Court upheld the order in Arena Holdings (Pty) Ltd t/a Financial Mail and Others v South African Revenue Service and Others (CCT 365/21) [2023] ZACC 13 (30 May 2023).

The Constitutional Court found sections 35 and 46 of PAIA and 67 and 69 of the TAA constitutionally invalid. It emphasised the need to balance the right to privacy with the rights of access to information and freedom of expression. Thompson’s request for access to Zuma’s tax returns for the 2010 to 2018 tax years was referred back to SARS for reconsideration in light of the court’s order. The Minister of Justice and Correctional Services was given until the end of June 2023 to supplement the request for access to the records.

To allow Parliament time to address the constitutional invalidity, the Court suspended the specific sections for 24 months from the date of the order.

This judgment is expected to enhance transparency in public bodies and among public officials, reinforcing the constitutional right of access to information.

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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)

Roy Bregman is an accredited divorce mediator and specialises in: - Drafting of antenuptial and postnuptial contracts; - Winding up of deceased estates; - Arbitration, mediation and alternative dispute resolution;...

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