The Public Protector will take on Sars commissioner in the Constitutional Court next month in the battle for access to former president Jacob Zuma’s tax returns.
PUBLIC Protector advocate Busisiwe Mkhwebane will take on SA Revenue Service (Sars) commissioner Edward Kieswetter at the Constitutional Court next month in the battle for access to former president Jacob Zuma’s tax returns.
Mkhwebane’s move follows a 2018 complaint by former DA leader Mmusi Maimane after The President’s Keeper by seasoned investigative journalist Jacques Pauw was published.
The explosive book detailed claims that Zuma had received R1 million a month from Royal Security, a company owned by ANC supporter Roy Moodley.
Mkhwebane has been trying to gain access to Zuma’s tax returns since Maimane’s complaint following the book’s publication.
In her papers filed at the apex court, Mkhwebane states that she strongly disagreed with the taxman’s legal opinion that senior advocate Ngwako Maenetje suggesting that the Public Protector had no power to summon Sars to provide her with Zuma’s tax returns.
Mkhwebane then obtained a second opinion from another senior advocate Muzi Sikhakhane, who stated that the Public Protector can only be limited by the Constitution, which is superior to the Tax Administration Act used by Kieswetter.
She said she could not send Sikhakhane’s opinion to Kieswetter due to her busy schedule.
In March, North Gauteng High Court Judge Peter Mabuse ordered Mkhwebane to pay 15% of the costs in the matter from her own pocket after she challenged Kiewetter’s decision not to allow her access top Zuma’s tax returns.
”If the appeal fails, we submit that the applicant (Mkhwebane) must pay the costs of the application, on the party and party scale.
Similarly, if the appeal succeeds the first respondent (Kieswetter) must pay the costs. In other words, costs must follow the results and be costs in the appeal,” read Mkhwebane’s written submissions prepared by senior advocate Dali Mpofu and Tholoana Motloenya.
Mkhwebane maintained that there is no room in this matter for either punitive costs against any party not to mention personal costs against any individual official.
”It is clearly in the public interest that the disputed legislation be authoritatively interpreted. Here the public official against whom a personal cost order was sought and granted was neither personally cited nor specifically informed thereof,” stated her advocates’ submissions.
But Kieswetter has also come out guns blazing, saying that Mkhwebane negligently failed to provide Sars with the legal advice intended to counter its own legal opinion.
”Despite these principles already having been identified by Sars prior to the high court litigation, the Public Protector elected not to pursue the indicated legal recourse available to her. She litigated with reckless disregard for various procedural requirements, substantive rights, and constitutional principles. She also wantonly accused the commissioner (Kieswetter) of violating the law and the Constitution, persisting in this stance even before this Court. She attacks SARS’ counsel for an attributed constitutional ‘nostalgia’,” read Sars’ submissions.
Kieswetter said Mkhwebane had failed to remedy her conduct in litigation which was censured in the matter of the SA Reserve Bank Absa lifeboat.
”As this court confirmed, where organs of the state (and more specifically the Public Protector herself) litigates in such fashion, courts can and should make an appropriate, punitive de bonis propriis (from her own pockets) costs order against her,” read Kieswetter’s submissions by senior advocate Jeremy Gauntlett and Frank Pelser.
The Constitutional Court will hear arguments in the matter next Thursday.
