Court grants access to former President Zuma’s tax records
25 Jul 2023
In a landmark ruling with far-reaching implications, the South African Constitutional Court, in a narrow 5-4 split decision, has paved the way for the disclosure of former President Jacob Zuma’s previously confidential tax records. The court’s judgment, written by Justice Jody Kollapen, highlights the delicate balance between the right to privacy and the right to access information, while emphasising the public interest in transparency and accountability. This decision not only affects the disclosure of Zuma’s tax history but also carries significant implications for the interpretation of the law governing access to information in South Africa.
Conflict of laws
The majority decision of the Constitutional Court upheld the ruling of the Gauteng High Court, which found that certain sections of the Promotion of Access to Information Act (PAIA) and the Tax Administration Act conflicted with Section 32 of the South African Constitution. Section 32 guarantees the right of access to information held by the state and by other persons when necessary to exercise or protect one’s rights. By recognising this conflict, the court has called for parliamentary action to address the constitutional invalidity within the next 24 months.
Interim access and mandatory disclosure
Pending parliamentary intervention, the Constitutional Court has ordered that the impugned provisions of PAIA will make the disclosure of information mandatory in specific circumstances. Firstly, disclosure is mandatory when the public interest in accessing the records clearly outweighs the harm contemplated in the relevant provision. Secondly, disclosure is also required if the records reveal evidence of a substantial contravention of the law or an imminent and serious public safety or environmental risk. This order extends to the Tax Administration Act, enabling the release of confidential tax records in response to PAIA requests.
Balancing privacy and access to information
The Constitutional Court’s judgment underscores the importance of striking a balance between the right to privacy and the right to access information. While recognising the inherent value of privacy, the court stressed that this right must be weighed against the principles of transparency, accountability and the public interest. The ruling clarifies that absolute limitations on access to information, as found in certain provisions of PAIA, cannot withstand constitutional scrutiny, signalling a shift towards greater openness and accountability in South Africa.
The Constitutional Court’s recent decision regarding access to former President Jacob Zuma’s tax records marks a significant milestone in South African jurisprudence. By affirming the public interest in transparency and accountability, the court has paved the way for limited disclosure of confidential tax records. This ruling not only impacts Zuma’s tax history but also serves as a catalyst for potential reforms in legislation governing access to information. It is now the responsibility of Parliament to address the constitutional invalidity and strike an appropriate balance between privacy and the public’s right to access information.
Written by Johan de Lange, Senior Professional Assistant – Attorney at SchoemanLaw Inc.
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