What is public protector Busisiwe Mkhwebane playing at? She’s like a dog with a bone if the court papers in the matter between her and SA Revenue Service (Sars) commissioner Edward Kieswetter are anything to go by.
Mkhwebane is looking for former president Jacob Zuma’s tax information as part of her investigation into a complaint laid by former DA leader Mmusi Maimane, which alleged that Zuma received illicit payments from a security company. This was based on information in journalist Jacques Pauw’s book The President’s Keepers.
Pauw wrote that Zuma received a monthly payment of R1m from Royal Security, owned by Durban business person and ANC funder Roy Moodley during the first months of his presidency.
Mkhwebane is adamant that Kieswetter provide certain information and documents regarding any investigations the tax agency has or is conducting into the matter, even subpoenaing him and threatening to lay criminal charges against him if he would not comply. Kieswetter is refusing, saying doing so would go against the Tax Administration Act.
This resulted in the commissioner approaching the courts for clarity on the matter this week. But the issue did not just pop up recently. It has been going on since October last year, when Mark Kingon was acting Sars commissioner. Mkhwebane subpoenaed Kingon for the same information, according to Kiewswetter’s affidavit to the court.
In November 2018 Sars attended a meeting at the public protector’s Pretoria office, where Mkhwebane was present. During this meeting Sars apparently unpacked the Tax Administration Act to the public protector and her team, as well as explaining why there is a need for taxpayer confidentiality. The act does not allow Sars to disclose a taxpayer’s information except to a limited number of public bodies, of which the protector’s office is not one.
According to Kieswetter, Mkhwebane refused to accept Sars’s explanation so the revenue service suggested she go to court and get an order, to which she responded that the public protector’s office does not have the money to do so. In response, Sars offered to fund an independent legal opinion on the matter and to have senior counsel briefed jointly by it and the public protector.
This happened, and the opinion was provided in April this year, but Mkhwebane was apparently not happy with the outcome, which was similar to what Sars had argued all along. Kieswetter says Mkhwebane “claimed an entitlement” to access taxpayer information and asserted that the Tax Administration Act’s exclusion of her office was, according to her words in a letter, intended to create “a storm in a tea cut [sic]”.
She then said her office would get a second legal opinion — something Kieswetter says has never been provided to Sars and which the tax agency is not even sure exists at all. On October 21 Mkhwebane issued a subpoena that directed Kieswetter to personally come to her office and threatened criminal action if he did not comply.
After going through all of this, it does seem strange that Mkhwebane continues to insist that she be allowed access to Zuma’s tax record. Kieswetter says “the public protector, in her insistence on access to whatever taxpayer information she chooses, acts not only in excess of her powers, irrationally and unreasonably, but pursues extraneous or ulterior objectives”.
Zuma, who has called in sick to avoid appearing before the Zondo commission, took to Twitter in the middle of it all to say he was not part of the Sars application and that he was happy for Mkhwebane to access his record.
“I hear that my Sars records are being contested in court by Kieswetter. No-one has consulted me about this matter,” Zuma said. “It must be known that I have nothing to hide. If the PP [public protector] wants to see my Sars records, she is free to do so. We should not make the job of the PP difficult. If she wants my records, she must have them.”
But this still does not mean Mkhwebane is entitled to the information she wants, which also concerns a Sars investigation. She has now agreed to stay the subpoena against Kieswetter pending a court ruling on whether Sars can withhold taxpayer information from the public protector, and whether that office’s subpoena powers extend to taxpayer information.
All of this does make one wonder about the real motive behind Mkhwebane wanting this information, and why she has been so insistent on Sars breaking the law to satisfy her. All kinds of thoughts pop up: is she trying to fish information from Sars for Zuma? Did she do this hoping that if Sars would give Zuma up she could do the same with others, such as President Cyril Ramaphosa or public enterprises minister Pravin Gordhan? Or is she just as lawless as Zuma himself?
The question that keeps popping up around Mkhwebane — a number of courts have asked the same thing — is does the public protector have an ulterior motive or is she just incompetent? According to Kieswetter, the issue is not about Zuma but about protecting all taxpayers.
There is, of course, a simple solution to all of this: wait for court to provide clarity.
• Quintal is political editor.
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