IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CCT case no: 63/2020

In the matter between:

PUBLIC PROTECTOR Applicant

and

COMMISSIONER FOR THE SOUTH

AFRICAN REVENUE SERVICE First respondent

JACOB GEDLEYIHLEKISA ZUMA Second respondent

MMUSI MAIMANE Third respondent

ROYAL SECURITY CC Fourth respondent

FIRST RESPONDENT’S HEADS OF ARGUMENT

INDEX
Contents: Page no:

A. Introduction 1

B. Factual and procedural background 10

C. The Commissioner’s case 15

(1) The statutory text 16
(2) The statutory context 21
(3) The statutory purpose 24
(4) The constitutional context 26

D. The Public Protector’s case before the High Court 28

 (1) The Public Protector’s allegation regarding the lack
of “jurisdiction or competence” 29
(2) The Public Protector’s argument that the Commissioner’s
“refusal to provide the relevant information is unlawful” 31
(3) The Public Protector’s claim for disclosure of taxpayer
information “if all else fails” 34

E. The Public Protector’s case before this Court 42

F. Conclusion and appropriate relief 48

 1

A. Introduction

1. Does it accord with the Constitution to contend (as she does) that the Public

Protector is not subject to “any law” when “obtaining or subpoenaing

information from SARS”?1

2. Clearly not, as this Court already confirmed.2 The Constitution explicitly

provides that Chapter 9 institutions (of which the Public Protector is one) are

indeed subject to “the Constitution and the law”.3 This Court’s consistent

subsequent judgments reiterate that the Public Protector is indeed, like all other

public officials, “required to act in accordance with the law”.4 And like all “other

organs of state”, the Public Protector is obliged to “compl[y] with the

Constitution and other relevant laws in exercising public power.”5

3. There is therefore no prospect of success, least of all in circumstances where

material parts of the High Court’s ratio are not even competently challenged.

Particularly in such circumstances the Public Protector’s claim to bypass the

constitutional hierarchy of courts of appeal is not in the interests of justice.

4. The Constitution and the law are quite clear. Taxpayer information is protected

by law giving effect to the constitutional right to privacy. The right to privacy is

1
Record vol 2 p 102 para 43.
2
Economic Freedom Fighters v Speaker, National Assembly 2016 (3) SA 580 (CC) at para 49.
3
Section 181(2) of the Constitution.
4
Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC) at para 155; Economic Freedom
Fighters v Speaker, National Assembly supra at para 49.
5
Economic Freedom Fighters v Gordhan; Public Protector v Gordhan 2020 ZACC 10 at para 105.
 2

routinely protected in constitutional democracies by requiring either the waiver

or permission by the right-bearer, or judicial permission, prior to infringing

privacy.6 South African courts have consistently confirmed this legal position in

the context of tax records.7 This is supported by this Court’s caselaw.8 The same

principle applies also under (and is therefore buttressed by)9 international law,10

and also comparative law.11 The Public Protector is not so bold as to contend

that any of these precedents is incorrect, unconstitutional or liable to be overruled

or even revisited.12 Absent such suggestion – which in any event in the interests

of justice would have militated yet further against a direct appeal to this Court

(bypassing the Supreme Court of Appeal) – there is no arguable point of law

warranting the Public Protector’s purported approach to this Court.

6
See e.g. Mistry v Interim Medical and Dental Council of South Africa 1998 (4) SA 1127 (CC) at
para 29, which deals with the right to privacy as entrenched in the interim Constitution in circumstances
where an impugned statutory provision allowed entry without warrant of any place, and then to inspect
documents.
7
We refer to the well-known caselaw governing taxpayer information below in addressing the Public
Protector’s purported counter-application.
8
See e.g. Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty)
Ltd 2001 (1) SA 545 (CC) at paras 17, 40, 52 and 55. See, too, Thint (Pty) Ltd v National Director of
Public Prosecutions; Zuma v National Director of Public Prosecutions 2009 (1) SA 1 (CC) at paras 76
and 78, in which Langa CJ reiterated the importance of the right to privacy entrenched in section 14 of
the Constitution. Hence “courts … jealously guard them by scrutinising search warrants ‘with rigour
and exactitude’.” Whereas a “search and seizure operation will inevitably infringe a person’s right to
privacy”, the legislation considered in Thint “provides considerable safeguards which ensure that the
infringement goes no further than reasonably necessary in the circumstances.” Of these “the
requirement of judicial authorisation for search warrants” constituted a significant part of “a broader
scheme which ensures that the right to privacy is protected”, Langa CJ held. See further Gaertner v
Minister of Finance 2014 (1) SA 442 (CC) at para 69.
9
Section 233 of the Constitution.
10
Valderrama et al (eds) “The Rule of law and the effective protection of taxpayers’ rights in developing
countries” WU International Taxation Research Paper Series No. 2017–10 (Wirtshafts Universität
Wien, Vienna 2017) at 7 and 11; article 12 of the UN Declaration of Human Rights; article 17(1) of the
International Covenant on Civil and Political Rights.
11
See e.g. the Supreme Court of Canada’s judgment in Slattery v Doane Raymond Limited, Trustee of
the Estate of Raymond P. Slattery, a Bankrupt [1993] 3 SCR 430, to which we revert below.
12
Quite the contrary: she contends for the application of the doctrine of precedent (Record vol 3 p 218
para 75; Public Protector’s written submissions at paras 57 and 146).
 3

5. Unable to answer SARS’ case in the court a quo, the Public Protector now

obliquely adopts what can only be characterised as an untenable severance

approach.13 She contends – explicitly – for the negation of section 11(3) of the

Public Protector Act (“the PPA”)14 in interpreting and applying her subpoena

powers under section 7(5) of the PPA. This is not only incompetent in law.15 It

is also inconsistent with the facts.16 The Public Protector explicitly and

repeatedly threatened SARS with section 11(3) for purposes of coercing

compliance with her subpoenas,17 and even reiterated her threats in press

statements.18 This in the teeth of section 14 of the Constitution itself, to which

the Tax Administration Act (“the TAA”)19 gives effect in protecting taxpayer

information.

6. Its constitutional and actual factual demerits apart, the Public Protector’s

argument is also conceptually contrived. It effectively contends for the

13
Record vol 3 p 198 paras 11-13; Public Protector’s written submissions para 19, contending that the
“only question” is whether “the Public Protector’s subpoena powers, defined [sic] in section 7(4) of the
PP Act, extend to the taxpayer’s information as defined in the TA Act”; Public Protector’s written
submissions para 47, contending that the High Court “erred in entertaining the irrelevant question
pertaining to section 11(3) and 11(4) of the PP Act when the matter simply involves the scope and ambit
of the specific powers contained in section 7(4) of the PP Act vis-à-vis the general prohibition contained
in section 69(1) of the TA Act”.
14
Act 23 of 1994.
15
Case v Minister of Safety and Security 1996 (3) SA 617 (CC) at para 57, holding that in interpreting
legislation a court “must read the text as a whole, assigning a meaning to every word and phrase, and
not permitting any portion of the text to be rendered redundant.” Mokgoro J comprehensively cited
authorities for this well-established principle, including Attorney General, Transvaal v Additional
Magistrate for Johannesburg 1924 AD 421 at 436; R v Bishop of Oxford (1879) 4 QBD 245 at 261; and
Secretary for Inland Revenue v Somers Vine 1968 (2) SA 138 (A) at 156, which acknowledges the
principle of non-redundancy as the “cardinal rule” of interpretation.
16
Record vol 4 p 301 para 58.
17
Record vol 4 p 289 para 28.
18
Record vol 4 pp 289-290 para 29.
19
Act 28 of 2011.
 4

severance of penal sanctions from the subpoena in issue.20 This is flawed on first

principle. A subpoena is intrinsically a coercive directive. It puts a recipient to

compliance with a command on pain of penalty for non-compliance.21 Hence its

name: “subpoena”, sub (under) poena (penalty).22 Not sans poena (without

penalty).

7. The Public Protector is now driven to the latter contradiction in terms, which

negates the legal nature of a subpoena. This argument is advanced before this

Court for the first time, and it is inconsistent with the Public Protector’s heads of

argument filed in the High Court.23

8. The sans poena construct is also untenable and self-destructive in its own terms.

This is, firstly, for theorising erroneously regarding “mens rea” (the mental

element required for criminal liability).24 The correct position is that the issue is

one of legality (not fault), both under criminal law and the Constitution. Under

the Constitution SARS is only empowered to do what its empowering legislation

20
Public Protector’s written submissions para 49.
21
This is the “consequences of non-compliance” with a subpoena, which the Public Protector’s written
submissions correctly concede are “well-known” (para 49).
22
Garner (ed) Black’s Law Dictionary 11th ed (Thomson Reuters, St Paul MN 2019) s.v. “subpoena”.
23
Record vol 4 pp 301-302 para 58.
24
Public Protector’s written submissions para 50, which expounds the proposition that it is
“theoretically perfectly possible” for the Commissioner of SARS to breach his constitutional duty but
nonetheless escape section 11(3) of the PPA on account of “lack[ing] the requisite mens rea”.
Section 11(3) does not require any mens rea. It imposes strict criminal liability. It reads
“Any person who, without just cause, refuses or fails to comply with a direction or request
under section 7(4) or refuses to answer any question put to him or her under that section or
gives to such question an answer which to his or her knowledge is false, or refuses to take the
oath or to make an affirmation at the request of the Public Protector in terms of section 7(6),
shall be guilty of an offence.”
 5

permits.25 Section 69(1) of the TAA precludes what the Public Protector

purported to compel. In doing so she specifically invoked section 7(4) of the

PPA,26 not any constitutional authority or provision.27 Secondly, if it is correct

(as the Public Protector is driven to argue) that the section 11 issue and criminal

liability are beyond this Court’s jurisdiction,28 then her application for leave to

appeal must of course fail on this basis too.

9. Self-evidently the Public Protector’s newfound sans poena construct is advanced

to avoid an equally untenable legal terminus. Unless section 11(3) of the PPA is

rendered a dead letter (on the Public Protector’s construct), SARS officials are

fated to commit a criminal offence. Whether a SARS official accedes to the

Public Protector’s demand for taxpayer information, or instead respects the

constitutionally and statutory protected status of taxpayer information, the

official would incur criminal consequences. This is because under section 69(1)

read with section 236 of the TAA the disclosure of taxpayer information is a

criminal offense. Simultaneously, under section 11(3) of the PPA non-

compliance with a subpoena issued under section 7(4) of the PPA is a criminal

offense. Both scenarios expose SARS officials to imprisonment.29

25
Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1)
SA 374 (CC) at para 56.
26
Record vol 1 p 75 line 11, citing specifically the empowering provision invoked: “section 7(4)(a) of
the Public Protector Act 23 of 1994”. Similarly, the Public Protector’s written submissions at para 20
acknowledges that “the subpoena [was] issued by the applicant in terms of section 7(4) of the PP Act”.
27
The rest of the subpoena cites sections 7(8), 11(3) and 11(4) of the PPA. There is not a single
reference to the Constitution anywhere to be found in the subpoena. The constitutional consequences
of this is as explained by this Court in Minister of Education v Harris 2001 (4) SA 1297 (CC) and
Liebenberg NO v Bergrivier Municipality 2013 (5) SA 246 (CC) at paras 93-95.
28
Public Protector’s written submissions paras 51-52.
29
Section 236 of the TAA provides
 6

10. Thus not only a taxpayer’s constitutional right to privacy is infringed by the

Public Protector’s approach,30 but also SARS officials’ constitutionally-

entrenched right to liberty.31 It is only the latter form of unconstitutionality

(triggered by the approach for which the Public Protector contends) which is

purportedly palliated by the Public Protector’s sans poena proposition.

Protecting privacy is a constitutional obligation which her conduct and legal

argument disrespect. This despite her own constitutional obligations under inter

alia section 7(2) and 8(1) of the Constitution.32

11. Unfortunately, the Public Protector has seen fit to pillory variously SARS or its

counsel,33 and now the High Court.34 This by attempting to attribute to either or

all of them some nostalgia for the Westminster system of parliamentary

supremacy.35 This rhetoric is unworthy. It disregards the status attributed by

this Court’s caselaw and the Constitution to Parliament.36 This Court itself

recognised Parliament’s important responsibilities and crucial constitutional role

in the particular context of the Public Protector’s powers.37 SARS has at all times

“A person who contravenes the provisions of section 67(2), (3) or (4), 68(2), 69(1) or (6)
or 70(5) is guilty of an offence and, upon conviction, is subject to a fine or to imprisonment for
a period not exceeding two years.”
30
Section 14 of the Constitution.
31
Section 12(1)(a) of the Constitution.
32
These provisions require organs of State to respect, protect, promote and fulfil the rights contained in
the Bill of Rights; and stipulate that the Bill of Rights applies to all law and binds all organs of State.
33
Public Protector’s written submissions para 33.
34
Public Protector’s written submissions para 28; Record vol 3 p 207 para 35.
35
Public Protector’s written submissions para 28.
36
Gaertner supra at para 71; Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) at para 54; and
Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC) at para 73.
37
EFF v Speaker, National Assembly supra at para 90.
 7

demonstrated its adherence to and reliance on the supremacy of the Constitution

and the rule of law.38

12. In specifically citing its obligations in this regard, SARS extensively engaged

with the Public Protector prior to the High Court litigation.39 It did so in an

attempt to assist her functions through the extant legislative means.40 The Public

Protector was advised to pursue the taxpayer information from the taxpayers

concerned, or to approach the High Court for such relief.41

13. Both forms of recourse are available to the Public Protector under the legal

regime, which has – as the founding affidavit filed in this Court reiterates – never

been contended to be unconstitutional.42 They must, moreover, be interpreted to

give the fullest possible effect to the entrenched right to privacy and freedom

from incarceration without just cause.43 Thus the “battle”44 for which the Public

Protector repeatedly45 contends (between sections 181 and 182 of the

Constitution and the TAA’s protection of privacy) is self-defeating.46 None of

38
This is reflected inter alia in the contemporaneous correspondence SARS addressed to the Public
Protector (Record vol 1 p 57 paras 2-3).
39
Record vol 4 p 290 para 30; Record vol 4 p 291 para 32.
40
Which is what section 181(3) of the Constitution contemplates.
41
Record vol 2 p 127 para 32.3, which advice the Public Protector now accepts in this respect (Record
vol 3 p 194 para 10.6).
42
Record vol 3 p 209.
43
Tshwane City v Link Africa 2015 (6) SA 440 (CC) at para 153.
44
Record vol 3 p 209 para 43.
45
Public Protector’s written submissions para 28.
46
It is also self-contradictory. The Public Protector’s written submissions contend in para 47 that “the
matter simply involves the scope and ambit of the specific powers contained in section 7(4) of the PP
Act vis-à-vis the general prohibition contained in section 69(1) of the TA Act”. And it resorts to the
“statutory framework” itself (not any provision of the Constitution) for the “limitations or safeguards”
required to protect the constitutional right to privacy (para 70).
 8

the provisions of the latter Act is under constitutional attack. Its taxpayer-

privacy provisions are promoted by Chapter 2 of the Constitution itself, and

dovetail with section 11(3) of the PPA. Far from detracting from the PPA, the

TAA provides a twofold alternative recourse regime to the Public Protector to

obtain taxpayer information.

14. Despite SARS assisting her in identifying and pursuing the available legal course

of action, the Public Protector persisted in eschewing these available legal routes.

She resorted to a singular extra-judicial device: subpoenaing the Commissioner

of SARS. Not once, but twice. In each instance she threatened penal

consequences, including imprisonment and penalties, in the event of non-

compliance. This despite SARS explaining the legal constraints, and despite a

legal opinion jointly obtained by SARS and the Public Protector confirming the

legal position. Yet the Public Protector vilified SARS in media statements and

continues to do so even before this Court,47 in conflict with section 41 of the

Constitution.48

15. Before this Court the Public Protector now finally concedes that the TAA indeed

“does not undermine the effectiveness” of the Public Protector, because she “may

access [taxpayer] information by making an application to the High Court in

terms of section 69(2)(c) of [the TAA] or obtaining consent from the taxpayer”.49

47
Record vol 1 p 66 para 10.4.
48
It provides that organs of State must inter alia respect each other’s functions and powers, and not
interfere with their effective exercise.
49
Record vol 2 p 127 para 32.3.
 9

This is the conclusion in the legal opinion procured by the Public Protector and

SARS jointly, long before the subpoena and High Court litigation spawning this

application. The Public Protector confirmed in her affidavit filed in this Court

that she does not contest this conclusion.50 Her heads of argument reiterate this

concession emphatically.51

16. There is therefore no purposive argument in favour of the absurd, text-defiant,

context-disjointed, and privacy-impinging construction for which the Public

Protector contends. Her construction only serves to undermine SARS’ important

functions, which – it is common cause – depend heavily on the confidentiality of

taxpayer information.52 While the Public Protector has at least two available

statutory alternatives to subpoenaing taxpayer information from SARS, SARS

remains reliant on taxpayers’ disclosure of private information. Taxpayers

disclose this information to SARS on the very basis that the law recognises the

privacy interest in this information. This longstanding legal policy has been

specifically enacted by the democratic Parliament. It had been respected by

courts for decades. And it enjoys constitutional protection under section 14 of

the Constitution.

50
Record vol 3 p 194 para 10.6.
51
Public Protector’s written submissions para 86, which records that “the Public Protector had no
qualms with the other three conclusions contained in paragraph 32 of the Maenetje SC opinion”. It is
only the conclusion contained in the first subparagraph which she contests. The contested conclusion
is that “[t]here is no conflict between the Public Protector’s subpoena powers and the TAA’s prohibition
on disclosure of SARS confidential information and taxpayer information” (Record vol 2 p 127
para 32.1).
52
Record vol 1 p 24 para 32; admitted at Record vol 2 p 105 para 62.
 10

17. Thus the Public Protector’s case is bad at its core: legally, factually, procedurally,

and, most importantly, also constitutionally. This is compounded by the Public

Protector’s heads of argument failing to address in multiple respects SARS’

answering affidavit filed in this Court, and affidavits and written and oral

argument before the High Court. The High Court’s judgment is, furthermore,

criticised by the Public Protector on spurious and demonstrably defective bases.

The attempt to cavil with various observations and findings is in any event not a

competent approach to appeals.53 And the arguments on the Public Protector’s

purported counter-application and costs are devoid of merit and entirely

inconsistent with this Court’s caselaw.

18. In demonstrating this we follow the scheme set out in the above index. For the

reasons provided below and in SARS’ opposing affidavit, we submit that the

application – alternatively, the appeal (if leave to appeal is granted) – falls to be

dismissed with costs.

B. Factual and procedural background

19. The subpoena precipitating the litigation culminating in this application was

issued on 21 October 2019.54 It purportedly compelled the Commissioner of

SARS to divulge taxpayer information at an interrogation scheduled for 13

November 2019.55

53
Masstores (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd 2017 (1) SA 613 (CC) at para 59.
54
Record vol 1 p 26 para 37.
55
Record vol 1 p 26 para 37.
 11

20. The 2019 subpoena was the sequel to a similarly-worded prequel dated

October 2018.56 In response to the 2018 subpoena the-then Commissioner

engaged extensively with the Public Protector.57 In doing so it was pointed out

that the Public Protector’s subpoena powers do not extend to taxpayer

information.58 SARS’ consistent stance is that it is under a statutory obligation

to preserve the confidentiality in such information.59 SARS has been advised

and accepted that acting accordingly constitutes – in the words of the

unimpugned PPA60 – “just cause”.61

21. SARS contemporaneously explained the legal position in correspondence and

other engagements with the Public Protector.62 Regrettably the Public Protector

rejected these, adopting the posture that her subpoena powers surpasses any

legislation Parliament passes.63 In response SARS suggested that the parties

approach the High Court to determine whether the Public Protector’s position is

56
Record vol 1 p 18 para 18; Record vol 1 pp 51-54.
57
Record vol 1 p 19 para 20; Record vol 1 p 21 para 26; Record vol 1 p 23 para 31; Record vol 1 p 24
para 33.
58
Record vol 1 p 19 para 20.
59
Record vol 1 p 13 para 4.
60
Significantly, SARS’ founding affidavit in the High Court already pointed out that neither the PPA
nor the TAA was at any stage contended to be unconstitutional or in need of any special interpretation
(to the extent appropriate and permissible) to render either of them constitutionally compliant (Record
vol 1 p 17 para 12; specifically admitted at Record vol 2 p 103 para 51). Yet the Public Protector’s
conditional counter-application seeks the disclosure of the information identified in the 2019 subpoena
explicitly “[i]n the event that this Honourable Court rules that the stance adopted by the Public Protector
is not supportable in terms of the law as it currently stands” (Record vol 2 p 100 para 33, our emphasis).
Such relief is legally incompetent in the absence of any successful constitutional challenge against “the
law as it currently stands”.
61
Record vol 1 p 14 para 4; Record vol 2 p 121 para 14.4.
62
Record vol 1 p 19 para 20; Record vol 1 p 23 para 31.
63
Record vol 2 p 102 para 43.
 12

correct.64 However, the Public Protector resisted such recourse, claiming a lack

of financial resources (implausibly, given the scale on which she has litigated).65

Hence the parties instead instructed independent senior and junior counsel jointly

to prepare the aforesaid legal opinion.66

22. The opinion was duly produced by Advs Maenetje SC and Ferreira.67 It was

furnished under cover of a letter by Cliffe Dekker Hofmeyr Attorneys expressing

agreement with its reasoning and conclusion.68 The opinion was also provided

to the Public Protector.69

23. The Public Protector thereupon repudiated the opinion, claiming an absolute

entitlement to access all and any “taxpayer information”.70 She accused SARS

of violating section 181(3) of the Constitution and section 7(4) of the PPA,

despite the joint legal opinion to the contrary.71 She embarked on a unilateral

“process of sourcing” a different legal opinion supporting her stance.72 She also

threatened SARS with section 11(3) of the PPA.73 This is the provision which,

64
Record vol 1 p 20 para 21.
65
Record vol 1 p 20 para 21
66
Record vol 1 p 20 para 22.
67
Record vol 1 p 20 para 24.
68
Record vol 1 p 21 para 25.
69
Record vol 1 p 21 para 26.
70
Record vol 1 p 21 para 27; Record vol 1 p 59 para 3 (expressly recording that “I [the Public Protector]
still maintain that I am not precluded by any law from obtaining or subpoenaing taxpayer information
from SARS”).
71
Record vol 1 p 60 para 6.
72
Record vol 1 p 21 para 27.
73
Record vol 1 p 60 para 7. The Public Protector’s answering affidavit variously asserts that her
repeated references to criminal consequences under the PPA is not a “threat” but an inevitable legal
reality. See e.g. Record vol 2 p 106 para 71: “I reiterate that there [sic] consequences which flow from
the Public Protector Act for instances where there is non-compliance with my directives as required in
the subpoenas. Repeating them does not amount to a threat by [sic] any construction.”
 13

as mentioned, criminalises non-compliance “without just cause” with the Public

Protector’s directions or requests.74

24. In a press statement issued at the time in relation to a separate investigation the

Public Protector similarly cited sections 7(4), 7(6) and 11(4) of the PPA against

SARS.75 Explicit reference was also made to a 12-month prison sentence in

addition to a R40 000 criminal penalty, should records directly demanded from

SARS by the Public Protector be withheld.76

25. This despite it being common cause that both the 2018 and 2019 subpoenas seek

information qualifying as taxpayer information under the TAA.77 The taxpayer

information relates not only to the second respondent (Mr Zuma), but also to the

fourth respondent (Royal Security CC).78 Thus even had any admissible

evidence been adduced (however belatedly) which could conceivably suggest

that Mr Zuma has suddenly granted any legally-cognisable consent for the

disclosure of his taxpayer information, this does not assist the Public Protector.

At least for this reason the tweet postdating the institution of the High Court

74
The legal consequences of these provisions are not in issue. The Public Protector only contends that
her repeated resort to these provisions and their consequences “does not amount to a threat by any
construction” (Record vol 2 p 106 para 71). See similarly Record vol 2 p 104 para 60.
75
Record vol 1 pp 22-23 para 30.
76
Record vol 1 pp 22-23 para 30.
77
Record vol 1 p 28 para 41 (noting that the information identified in the 2018 and 2019 subpoenas
constitute taxpayer information), which the Public Protector specifically admits in individually
traversing this part of the founding affidavit (Record vol 2 p 106 para 74).
78
See e.g. Record vol 1 p 77 para 7.5; Record vol 1 pp 78-79 para 8.1 items 1-3.
 14

application, which the Public Protector attempts to attribute to Mr Zuma,79

cannot constitute consent as required under the TAA.80

26. It is further common cause that the TAA’s protection of taxpayer information

gives effect to four undisputed features of tax collection. The first is that

confidentiality of information is absolutely critical for effective tax

administration. Second, SARS’ primary duty is to collect the correct amount of

tax through voluntary compliance, founded on the public’s trust and respect.

Third, SARS’ ability and statutory obligations to keep information confidential

is an important pillar on which taxpayers’ trust is built. Fourth, SARS is obliged

to exercise vigilance when dealing with access to information, and does so solely

for purposes of complying with its statutory obligations.81

27. A further procedural fact which was common cause before the High Court is that

Mr Zuma’s belated affidavit did not assist the Public Protector.82 The Public

Protector’s counsel specifically so argued before the High Court and did not

press the admission of that affidavit. It was filed many months out of time, on

the day before the High Court hearing.83 The Public Protector now somehow

seeks to suggest before this Court that the High Court erred in not admitting this

79
Record vol 2 p 93 para 7.
80
Record vol 2 p 152 para 25.
81
Record vol 1 p 24 para 32, recording that this “significant factual aspect has correctly not been
contested ever since by anyone, including the Public Protector”; and Record vol 2 p 105 para 62, in
which the Public Protector concedes this by “admit[ting] the allegations contained in these paragraphs
insofar as they correctly reflect the contents of ‘G’.”
82
Record vol 4 p 319 para 96.
83
Record vol 4 p 319 para 96.
 15

affidavit.84 This despite its admission (and explanation for its lateness) having

been opposed by SARS,85 and not even sought by the Public Protector.86 There

is no merit in this contention.

28. As we shall show, the circumstances regarding the availability of the deponent

of that affidavit is a crucial fact bearing on the Public Protector’s conduct in this

litigation; her resort to coercive subpoena powers; and her purported counter-

application a quo.

C. The Commissioner’s case

29. Unlike the Public Protector’s, the Commissioner’s case has remained consistent.

It is, in short, that SARS is by law required to respect the privacy vested in

taxpayer information.

30. SARS has always accepted the extant legal position. At each juncture SARS has

been advised that its stance is indeed correct, and this was confirmed by the High

Court. Indubitably the statutory compulsion under the TAA to keep taxpayer

information confidential constitutes “just cause” under the PPA. Accordingly

the Public Protector cannot compel by subpoena (backed by contempt

proceedings and criminal sanctions against SARS officials) the disclosure of

such information. The information in question may, however, be disclosed if

84
Record vol 3 p 211 para 52.
85
Record vol 4 p 319 para 97.
86
Record vol 4 p 319 para 96.
 16

written consent by the taxpayer is provided; or if a court order authorises the

disclosure. The availability of these exceptions demonstrates that neither

expediency or efficiency militates in favour of any different construction.

Conversely, effective tax collection requires that taxpayer information be

preserved.

31. This is consistent with the text of the applicable provisions, their context and

purpose, and the Constitution itself. We address each separately.

(1) The statutory text

32. This Court confirmed that the correct departure point in interpreting legislation

is its text.87 The text of the relevant statutory provisions is reflected in annexure J

to SARS’ founding affidavit filed in the High Court.88

33. The statutory interpretative exercise is narrowed by the parties’ correct

acceptance that the information in issue indeed constitutes “taxpayer

information”, as defined in the TAA.89 The parties also correctly accept that

SARS officials are indeed under a legal compulsion under the TAA to treat

taxpayer information as confidential, and not to disclose it.90 The only question

87
Mankayi v AngloGold Ashanti Ltd 2011 (3) SA 237 (CC) at para 70; Wary Holdings (Pty) Ltd v
Stalwo (Pty) Ltd 2009 (1) SA 337 (CC) at para 58; Diener NO v Minister of Justice and Correctional
Services 2019 (4) SA 374 (CC) at para 37.
88
Record vol 1 pp 80-88.
89
Section 67(1)(b) of the TAA provides
“taxpayer information … means any information provided by a taxpayer or obtained by SARS
in respect of the taxpayer, including biometric information.”
90
Section 69(1) of the TAA provides
 17

placed in contention by the Public Protector’s approach and subpoena is whether

the latter legal compulsion constitutes “just cause” as contemplated in

section 11(3) of the PPA.91

34. In interpreting precisely the same concept contained in the Constitution itself,

this Court held that “the concept of just cause must be grounded upon and

consonant with the values expressed in section 1 of the 1996 Constitution and

gathered from the provisions of the Constitution as a whole.” 92 The relevant

residual constitution provisions are identified and addressed below, in dealing

with the constitutional context. For present purposes it suffices to refer to the

constitutional values codified in section 1 of the Constitution. They include “the

advancement of human rights and freedoms”,93 and the “[s]upremacy of the

Constitution and the rule of law”.94

35. The human rights and freedoms engaged in subpoenaing taxpayer information

include the right to privacy, as SARS’ founding affidavit filed in the High Court

“A person who is a current or former SARS official must preserve the secrecy of taxpayer
information and may not disclose taxpayer information to a person who is not a SARS official.”
91
Section 11(3) of the PPA provides
“Any person who, without just cause, refuses or fails to comply with a direction or request
under section 7(4) or refuses to answer any question put to him or her under that section or
gives to such question an answer which to his or her knowledge is false, or refuses to take the
oath or to make an affirmation at the request of the Public Protector in terms of section 7 (6),
shall be guilty of an offence.”
92
De Lange v Smuts NO 1998 (3) SA 785 (CC) at para 30, applied in Malachi v Cape Dance Academy
International (Pty) Ltd 2010 (6) SA 1 (CC) at para 28.
93
Section 1(a) of the Constitution.
94
Section 1(c) of the Constitution.
 18

already reflected.95 This is supported by international and comparative law.96 It

militates against an interpretation of “just cause” which detracts from the TAA’s

protection of taxpayer information.97

36. The supremacy of the Constitution and the rule of law, in turn, require that “just

cause” be interpreted to give effect to the rule of law. This is the proposition

which the Public Protector finds variously unpalatable98 or incomprehensible,99

precipitating the “parliamentary supremacy” slur slung at SARS and the High

Court. But the proposition is, with respect, quite coherent and constitutionally

compelling. It is that

(a) if a rule of law (in other words, a legal rule)

(b) which is codified in an Act of Parliament (i.e. legislated by the

constitutionally competent Legislature)

(c) precludes the production of subpoenaed information (i.e. prohibits the

disclosure of taxpayer information),

(d) then it is inescapable (from a constitutional perspective)

95
Record vol 1 p 35 para 61. SARS officials’ rights entrenched in section 12(1)(a) of the Constitution –
which itself contains the concept “just cause”, without which no-one may be incarcerated (as
section 11(4) of the PPA contemplates) – are also engaged.
96
See e.g. Valderrama et al (eds) “The Rule of law and the effective protection of taxpayers’ rights in
developing countries” WU International Taxation Research Paper Series No. 2017–10 (Wirtshafts
Universität Wien, Vienna 2017) at 7 and 11, referring to article 12 of the UN Declaration of Human
Rights and article 17(1) of the International Covenant on Civil and Political Rights, which protect the
right to privacy.
97
Section 39(2) of the Constitution compels courts to adopt a construction which best promotes the
rights in the Bill of Rights, as this Court confirmed in inter alia Makate v Vodacom (Pty) Ltd 2016 (4)
SA 121 (CC) at para 89 and POPCRU v SACOSWU 2019 (1) SA 73 (CC) at para 85.
98
Public Protector’s written submissions para 32.
99
Record vol 3 p 207 para 34.
 19

(e) that just cause (i.e. a cause which a constitutionally-competent sense of

justice, as conceived by the constitutionally-competent lawgiver,

recognisees)

(f) exists for withholding such information.

37. The High Court correctly understood and accepted this proposition. It is, with

respect, clearly correct. A SARS official is indeed required by the Constitution

itself to act intra vires the applicable empowering provisions. Such official is

not at liberty to second-guess the constitutional validity of a legal prohibition

imposed on the official by Parliament.100 This is not nostalgia for Westminster

parliamentary supremacy; it is consistency with this Court’s caselaw.

38. This conclusion (reached first and foremost from a constitutional perspective)

also coincides squarely with the ordinary grammatical meaning of the words

“just cause”.101 The most authoritative foreign legal dictionary defines “just

100
See e.g. MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd t/a Eye & Lazer
Institute 2014 (3) SA 481 (CC) at paras 102-103 and Head of Department, Department of Education,
Free State Province v Welkom High School 2013 (9) BCLR 989 (CC) at para 86, confirming that an
official may not take the law in his or her own hands (even if the outcome is correct), because this
violates the rule of law.
101
For this Court’s approach on the ordinary grammatical meaning of words as derived from
dictionaries, see e.g. S v Liesching 2019 (4) SA 219 (CC) at paras 130-131
“The words ‘exceptional circumstances’ have not been defined in the Superior Courts Act.
Courts are enjoined to construe statutes consistently with the Constitution insofar as the
language of the statute permits. Words in a statute must be read in their entire context and given
their ordinary grammatical meaning consistent with the purpose of the statute. It is also
important to note that, in conducting this interpretative exercise, all statutes must be interpreted
through the prism of and in order to promote the spirit, purport and objects of, the Bill of Rights.
The dictionary definition of ‘exceptional’ must be the starting point of the enquiry. The Oxford
English Dictionary defines ‘exceptional’ as ‘of the nature of or forming an exception; out of
the ordinary course, unusual, special’.”
 20

cause” in the context of the fifteenth century Latin concept justa causa, which is

“a lawful ground”.102 A just cause is a “legally sufficient reason”.103 A ground

provided in a law passed by Parliament imposing a prohibition upon disclosure

self-evidently suffices in law as valid reason for non-disclosure.

39. Similarly, established and binding South African precedents confirm that the

wider concept “just cause” includes at the very least a lawful cause (or excuse).104

Self-evidently “an excuse sanctioned by existing rules of law” is encompassed

by the narrower concept “lawful excuse”.105 Thus an official is excused if a

competing legal obligation imposed by an extant legal rule requires non-

disclosure.

40. It follows that on its ordinary grammatical meaning the text “just cause” cannot

be construed as excluding the legal prohibition against disclosure of taxpayer

information under the TAA. To the contrary, in its ordinary meaning as a

minimum the phrase contemplates an obligation imposed, as here, by law.

102
Garner (ed) Black’s Law Dictionary 11th ed (Thomson Reuters, St Paul MN 2019) s.v. “justa causa”.
103
Id s.v. “cause” > “just cause”, read with “good cause” (to which the former concept refers).
104
S v Lovell 1972 (3) SA 760 (A) at 762G-763B. See similarly cases dealing with the concept “just
excuse”, including Attorney-General, Transvaal v Kader 1991 (4) SA 727 (A) at 733E-737C, collecting
the relevant caselaw, explaining the wider ambit of “just excuse [or cause]”, and observing that
“common benefit” has always been a basis for excusing evidence being adduced (id at 732H-I, citing
Merula Manier van Procederen 4.65.4.1). Kader further confirmed “that ‘just excuse’ is not confined
to matters of privilege, compellability and admissibility”, and reiterated Rumpff JA’s observation in S
v Heyman 1966 (4) SA 598 (A) at 611sup-A that one of the two categories of “just excuse” recognised
by law is when a person can invoke a common law or statutory provision pursuant to which no duty
exists to act as witness. The same self-evidently applies a fortiori where a statutory provision imposes
a duty to preserve the confidentiality of information.
105
Kader supra at 734B-B/C.
 21

(2) The statutory context

41. This Court’s caselaw confirms the importance of considering the context in

which the text for interpretation appears.106 The statutory context of the words

“just cause” is the rest of the relevant provisions of the PPA, and the TAA.

42. The Public Protector’s argument in this Court now explicitly seeks to exclude

section 11(3) of the PPA from the interpretative inquiry. Before the High Court

she invokes no provision in the PPA for purposes of restricting the meaning of

the wider concept “just cause” so as to exclude even the narrower component

lawful cause (in the sense of acting under legal prohibition).107 Instead, under

the heading “[t]he relevant legal framework” the Public Protector’s High Court

answering affidavit refers to only two provisions in the PPA: sections 7(4)(a)

and 11(3).108 The latter provision – which her argument now inconsistently seeks

to negate – contains the specific text (“without just cause”) under consideration.

The selfsame provision also criminalises a failure to comply with a direction by

the Public Protector “to submit an affidavit or affirmed declaration or to appear

106
Cool Ideas 1186 CC v Hubbard 2014 (4) SA 474 (CC) at para 28; Natal Joint Municipal Pension
Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at para 18. In Road Traffic Management
Corporation v Waymark (Pty) Limited 2019 (5) SA 29 (CC) at para 45 this Court recently collected and
applied this and related principles governing statutory interpretation.
107
To the contrary, the PPA itself recognises the need to protect members of the office of the Public
Protector from being compelled to give evidence – even in a court of law (section 6(8) of the PPA).
Hence the PPA cannot be construed as precluding similar protection against compulsion under
legislation governing the conduct of SARS officials. Section 6(8) of the PPA provides
“The Public Protector or any member of his or her staff shall be competent but not compellable
to answer questions in any proceedings in or before a court of law or any body or institution
established by or under any law, in connection with any information relating to the investigation
which in the course of his or her investigation has come to his or her knowledge.”
108
Record vol 2 p 97 paras 24-25.
 22

before [the Public Protector] to give evidence or to produce any document …

which has a bearing on the matter being investigated” under section 7(4)(a).

43. The immediate statutory context of the text “just cause” as contained in

section 11(3) demonstrates that “without just cause” cannot be construed as

contended by the Public Protector. Otherwise exposure to criminal liability is

expanded. Such result is inconsistent with the well-established in favorem

libertatis canon of construction confirmed by this Court.109

44. The TAA in turn extensively supports the ordinary grammatical meaning of the

text. This it does by providing ample alternative methods for obtaining taxpayer

information. It could either be obtained from a taxpayer directly,110 or it could

be obtained by applying to court.111 The Public Protector’s High Court

answering affidavit itself indeed attempted, albeit only in the alternative (“if all

else fails”112 under “the law as it currently stands”),113 to invoke both these

alternatives.114 As mentioned, she had indeed been advised (already in the joint

opinion provided by Adv Maenetje SC dated 14 March 2019)115 that these two

109
Hira v Booysen 1992 (4) SA 69 (A) at 78D-F; Democratic Alliance v African National
Congress 2015 (2) SA 232 (CC) at paras 129-131, referring to and applying the common law principle
that provisions providing for criminal consequences are interpreted restrictively.
110
Section 69(6)(b) of the TAA.
111
Section 69(2)(c) of the TAA.
112
Record vol 2 p 100 para 34.
113
Record vol 2 p 100 para 33.
114
The conditional counter-application seeks the disclosure of taxpayer information (Record vol 2 p 100
para 33, specifically invoking section 69(2)(c) of the TAA); and to the extent that the Public Protector’s
reliance on the tweet by Mr Zuma is capable of being understood it appears to be a failed attempt to
rely on taxpayer consent (as contemplated by section 69(6)(b) of the TAA).
115
Record vol 2 p 113.
 23

options were available.116 She elected, however, at the time not to pursue either.

This has significant implications for her conditional counter-application.117

45. For the present purpose of statutory interpretation, we reiterate, the availability

of the various options provided by the TAA means that there is no purposive

rationale for departing from the ordinary grammatical meaning of the text.

Particularly not in the wider context of the TAA. It identifies specific

constitutional and statutory functionaries (including a Chapter 9 constitutional

institution)118 to whom SARS officials may disclose taxpayer information.119

However, the Public Protector is not one of the excepted entities.120 This

116
Record vol 2 p 124 para 23; Record vol 2 p 124 para 25.
117
Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration 2009
(1) SA 390 (CC) at para 54, confirming that “[t]he principle of the right of election is a fundamental
one in our law. … When exercising an election, the law does not allow a party to blow hot and cold. A
right of election, once exercised, is irrevocable particularly when the volte-face is prejudicial or is unfair
to another.”
118
Section 70(6) provides
“SARS must allow the Auditor-General to have access to information in the possession of
SARS that relates to the performance of the Auditor-General’s duties under section 4 of the
Public Audit Act, 2004 (Act No. 25 of 2004).”
119
Section 70(1)-(4), which provide for discretionary (“may”) disclosures of taxpayer information – if
such disclosure is both (a) necessary for the purpose of exercising a power or performing a regulatory
function or duty under the legislation referred to in section 70(1), (2) or (3); and (b) relevant and
proportionate to what the disclosure is intended to achieve under such legislation; and only to the extent
permitted in section 70(1)-(4) – to the Director-General of National Treasury; the Statistician-General;
the Chairperson of the Board administering the National Student Financial Aid Scheme; a commission
of inquiry appointed by the President; a designated employee; the controlling body of registered tax
practitioners; the Department of Labour; the Governor of the South African Reserve Bank; the Financial
Service Conduct Authority; the Financial Intelligence Centre; the National Credit Regulator; and a
prescribed organ of State.
120
Therefore the Public Protector is on first principle presumed not to be intended as entity to which
any exception to section 69(1) applies: National Director of Public Prosecutions v Mohamed NO 2003
(4) SA 1 (CC) at para 40, recognising the principle articulated in the maxim inclusio unius est exclusio
alterius as a rule of logic, albeit not as a conclusive indication of statutory intention for purposes of
legal interpretation.
 24

provides further statutory context which militates against adopting a word-

changing interpretation.121

(3) The statutory purpose

46. The statutory purpose of the relevant provisions is a further factor for

consideration in any exercise in legal interpretation.122 This has been confirmed

by this Court specifically in dealing with the “just cause” concept, holding that

the purpose of the provision must be interrogated in such circumstances.123

47. As mentioned, this concept is contained in a provision which criminalises non-

compliance with a demand by the Public Protector to produce information; and

the criminal consequences include incarceration. At no stage during the

litigation did the Public Protector contend that the purpose of effective

investigation would be compromised unless SARS officials are under penalty

(including incarceration) compelled to provide taxpayer information. She now,

before this Court, concedes that the TAA indeed does not compromise her

effectiveness.124 This is crucial in the light of this Court’s approach to the

“without just cause” concept as found in the Constitution, and which protects

121
Such approach is generally unavailing: Hurley v Minister of Law and Order 1985 (4) SA 709 (D)
at 719I/J-720A/B, quoting Lord Atkin Liversidge v Anderson [1942] AC 206 (HL) at 245.
122
Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Co Ltd 2014 (3)
BCLR 265 (CC) at paras 84-86.
123
De Vos NO v Minister of Justice and Constitutional Development 2015 (2) SACR 217 (CC) at
para 41.
124
Record vol 3 p 194 para 10.6; Public Protector’s written submissions para 86.
 25

personal liberty.125 The Public Protector does not need to coerce the disclosure

of taxpayer information from SARS, and obtaining such information as

facilitated through the TAA read with section 11(3) of the PPA does not dilute

her functions. Conversely, SARS needs to relay on taxpayer information’s

privacy, and SARS officials must be permitted to comply with SARS legislation

without threats of incarceration.

48. Hence the Public Protector’s inability to advance any tenable basis for

contending that effectiveness or purposiveness support the construction for

which she contends. Clearly the Public Protector’s efficiency is not adversely

affected by giving effect to the ordinary grammatical meaning of the statutory

text. Not only does the Public Proctor now correctly accept that obtaining

taxpayer information either through consent from the taxpayer or court order

does not undermine her effectiveness. She also accepts that her subpoena power

is conferred by section 7 of the PPA.126

49. There is therefore no scope for any reliance by the Public Protector on this

Court’s judgment in EFF v Speaker, National Assembly or section 181 and 182

of the Constitution, to which we now turn.

125
De Vos NO v Minister of Justice and Constitutional Development supra at para 46, holding that
“… [t]he tenets of our Constitution dictate that accused persons who are not considered
dangerous should not have their freedom curtailed in a manner that is tantamount to inhuman
and degrading punishment in a way that impinges on their dignity and breaches their right not
to be deprived of their freedom without just cause.”
126
Record vol 2 p 102 para 43.
 26

(4) The constitutional context

50. The final and fundamental consideration to take into account in construing the

operative provisions is constitutional consistency and compatibility.127 As

mentioned, none of the provisions applicable to the Public Protector’s subpoena

is impugned for being unconstitutional. This in itself further restricts any scope

for contending for a creative construction.128

51. The Constitution requires a construction congruent with the ordinary

grammatical meaning of the text.129 This is, as mentioned, inter alia because the

provision the Public Protector invokes imposes criminal consequences.130

Further, as the Commissioner’s High Court founding affidavit already

demonstrated (without any contradiction),131 the TAA’s provisions protecting

taxpayer information give effect to the constitutional right to privacy.132 They

also promote the efficiency of tax collection,133 which is in turn essential to

127
SATAWU v Garvas 2013 (1) SA 83 (CC) at para 37.
128
Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd 2001
(1) SA 545 (CC) at para 17, holding that reading-in is only permissible as a constitutional remedy after
a successful constitutional attack on the statutory provision in question. Makate v Vodacom supra at
paras 89 and 91; South African Transport and Allied Workers Union v Moloto NO 2012 (6) SA 249
(CC) at para 44. See further Chairperson, Council of the Municipality of Windhoek v Roland 2014 (1)
NR 247 (SC) at para 57, in which O’Regan AJA explained that “[w]hether ‘reading in’ is used as a tool
of interpretation or as a constitutional remedy, a court should take care to avoid usurping the legitimate
role of the legislature.”
129
See, again, section 39(2) of the Constitution and Makate supra.
130
Thus sections 12 and 35 of the Constitution require that the qualification “without just cause” be
read to maximise personal liberty and restrict criminal liability.
131
Record vol 1 p 35 para 61; not denied at Record vol 2 pp 108-109 paras 90-91.
132
Entrenched in section 14 of the Constitution.
133
Record p 35 para 61. In Krok v Commissioner, South African Revenue Service 2015 (6) SA 317
(SCA) at para 25 the Supreme Court of Appeal recognised the efficiency of tax collection as statutory
objective served by the TAA.
 27

government acquitting itself of its constitutional duty to respect, protect, promote

and fulfil the rights in the Bill of Rights.134

52. Crucially, the Constitution itself contemplates that the Public Protector’s powers

be regulated by national legislation,135 as this Court confirmed in Economic

Freedom Fighters v Speaker, National Assembly.136 The Chief Justice held that

(a) the PPA is the national legislation contemplated by the Constitution;137

(b) the constitutional drafters were aware of the pre-existing provisions of the

PPA,138 which already conferred on the Public Protector additional

powers (including, as this Court specifically noted, the power to issue

subpoenas)139 not conferred by the Constitution itself;140

(c) the PPA provide details on the exercise of the Public Protector’s powers,

including specifically the power to issue subpoenas;141 and

(d) the PPA either added to or regulated the Public Protector’s powers

“harmoniously” with section 182 of the Constitution.142

53. Confronted by this precedent the Public Protector correctly contends for no

unconstitutionality affecting her empowering Act. She accordingly cannot argue

134
Section 7(2) of the Constitution.
135
Section 182(1) of the Constitution. Section 182(2) in turn provides for additional powers as
conferred by national legislation.
136
2016 (3) SA 580 (CC).
137
Id at para 58.
138
Id at para 59.
139
Id at para 60 fn 60.
140
Id at para 58.
141
Id at para 60, including fn 60.
142
Id at para 61 fn 61.
 28

for an extraordinary construction of the PPA by resorting to the Constitution.

The Constitution reinforces, as we have shown, the ordinary grammatical

meaning of the text.

54. The same applies, as we have also shown, to each of the interpretative tools: text,

context and purpose. They all confirm that the correct construction of the

statutory text is as SARS contends. As the ordinary grammatical meaning of

section 11(3) of the TAA conveys, a statutory prohibition against providing

taxpayer information quite clearly constitutes just cause for withholding such

information. This is what the High Court’s order confirmed. Its judgment and

order are, as we have shown, well-supported by this Court’s caselaw. Nothing

in the Public Protector’s case before the High Court or her case before this Court

detracts from the correctness of the High Court’s order.

D. The Public Protector’s case before the High Court

55. Before the High Court the Public Protector raised only thee “defences”. The first

impugned the High Court’s jurisdiction. The second related to the merits. The

third was no defence, but a conditional counter-application advanced on the basis

mentioned above: “if all else fails”143 under “the law as it currently stands”.144

None of these defences has any merit; they were correctly rejected by the High

143
Record vol 2 p 100 para 34.
144
Record vol 2 p 10 para 33.
 29

Court; and nothing in the Public Protector’s affidavit or written submissions filed

in this Court establishes the converse. We address each separately.

(1) The Public Protector’s allegation regarding the lack of “jurisdiction

or competence”

56. The Public Protector pleaded in her answering affidavit simply that

“First and foremost and in limine, the first respondent [the Public Protector] will
raise the issue of jurisdiction or competence of this court to grant declaratory
relief, in terms of section 21 of the Superior Courts Act 10 of 2013 (‘the
Superior Courts Act’), in the present circumstances. The application ought to
be dismissed on this ground alone.”145

57. As SARS’ heads of argument filed in the High Court demonstrated (with specific

reference to this Court’s caselaw),146 there is no merit in this unsubstantiated

contention. Section 21 of the Superior Courts Act quite explicitly confirms the

jurisdiction and competence of the High Court to grant declaratory relief.147 The

145
Record vol 2 p 95 para 15.
146
Metcash Trading Ltd v CSARS 2001 (1) SA 1109 (CC) at para 44, specifically in the context of tax
legislation; Rail Commuters Action Group v Transnet Ltd t/a Metrorail 2005 (2) SA 359 (CC) at
paras 107-108; Competition Commission v Hosken Consolidated Investments Ltd 2019 (3) SA 1 (CC)
at paras 80-82, citing Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd 2005 (6)
SA 205 (SCA) at para 18.
147
The relevant part of the provision cited in general terms in the Public Protector’s answering affidavit
is section 21(1)(c). It explicitly confirms the common law jurisdiction of this Court to grant declaratory
relief. Section 21(1)(c) provides
“A division has jurisdiction over all persons residing or being in, and in relation to all causes
arising and all offences triable within, its area of jurisdiction and all other matters of which it
may according to law take cognisance, and has the power in its discretion, and at the instance
of any interested person, to enquire into and determine any existing, future or contingent right
or obligation, notwithstanding that such person cannot claim any relief consequential upon the
determination.”
 30

requirements for declaratory relief are clear.148 They have been satisfied by

SARS,149 and not disputed by the Public Protector.150 The Public Protector

accordingly correctly abandoned her “first and foremost” defence in her heads

of argument filed in the High Court.151

58. Yet there now appears – not only inconsistently, but also incongruously in the

applicant for leave to appeal’s written submissions – some attempt on behalf of

the Public Protector to exhume this point. She now argues that it is this Court

which lacks jurisdiction.152 In that event she cannot approach this Court (since

it lacks jurisdiction), least of all for purposes of impugning an order by a court

whose jurisdiction she conceded.153

59. In any event, the inconsistency in her pleaded and argued case before this Court

and the High Court itself demonstrates conduct in litigation which is manifestly

inappropriate and put SARS to unnecessary costs.154

148
Harms Civil Procedure in the Superior Courts (LexisNexis, Durban 2019) SI 65 at A4.18; Joubert
(ed) The Law of South Africa 3rd ed (LexisNexis, Durban 2017) vol 4 at para 38. Stated differently, “all
that is required [to award declaratory orders] is that there be parties upon whom the order will be
binding” (Baxter Administrative Law (Juta, Cape Town 1981) at 107). Hoexter Administrative Law in
South Africa 2nd ed (Juta & Co Ltd, Cape Town 2012) at 559 confirms that the “only requirement”
remains the existence of “interested parties on whom the order will be binding”. For a general
discussion of the applicable principles, see also Cilliers et al Herbstein & Van Winsen The Practice of
the High Courts of South Africa 5th ed (Juta & Co Ltd, Cape Town 2009) vol 2 at 1428ff and Van
Loggerenberg Erasmus Superior Court Practice 2nd ed (Juta & Co Ltd, Cape Town2019) vol 1 serv. 9
at A2–126ff.
149
Record vol 1 pp 15-16 paras 8-10.
150
Record vol 2 p 102 paras 46-47, which “admit” and “note” the contents of paras 7-10 of SARS’
founding affidavit.
151
Record vol 4 p 301 para 57.
152
Record vol 3 p 198 para 13.
153
Government of the Republic of Zimbabwe v Fick 2013 (5) SA 325 (CC) at paras 44-46.
154
Biowatch Trust v Registrar, Genetic Resources 2009 (6) SA 232 (CC) at para 24.
 31

(2) The Public Protector’s argument that the Commissioner’s “refusal to

provide the relevant information is unlawful”

60. The Public Protector’s second ground of opposition asserts equally baldly that

the Commissioner’s conduct is unlawful, unconstitutional, and begets criminal

consequences. Her High Court answering affidavit did not advance any factual

or legal basis for this serious accusation. It contented itself with simply

reproducing (with varying accuracy)155 the text of some of the applicable

provisions,156 and purporting to “incorporate … by reference” the legal opinion

disclosed for the first time in her answering affidavit.157 In doing so it claimed

that the latter opinion should be preferred over the Maenetje SC opinion.158

61. But the Public Protector’s answering affidavit provided no analysis whatsoever

of the Maenetje SC opinion. (It was not provided to Adv Sikhakhane SC, and

accordingly also not considered – less still analysed – by him.) The Public

Protector’s singular attack on the Maenetje SC opinion is its supposedly being

“significantly deficient more perpetually [sic] in its glaring failure to take into

account the provisions of the Constitution.”159

155
For instance, section 181(3) of the Constitution and section 11(3) of the PPA is misquoted (at Record
vol 2 p 96 para 33 and Record vol 2 p 97 para 25 respectively).
156
Record vol 2 pp 96-98 paras 18-28.
157
Record vol 2 p 98 para 29.
158
Record vol 2 p 99 para 30.
159
Record vol 2 p 99 para 31.
 32

62. However, this disregards the dispositive judgment by this Court cited and applied

in the Maenetje SC opinion.160 The Public Protector correctly does not contend

that this Court erred in that judgment; nor that the Maenetje SC opinion

incorrectly applied this binding precedent; nor that the judgment is

distinguishable. Ex parte Speaker of the KwaZulu-Natal Provincial Legislature:

In re Certification of the Constitution of the Province of KwaZulu-Natal, 1996

indeed supports the proposition for which it is cited. It is that legislation should

be interpreted and applied where possible to “operate harmoniously in the same

field”.161 Applying this principle in the current context, the question is whether

section 11(3) of the PPA and section 69(1) of the TAA are capable of being

obeyed at the same time, or whether the Commissioner (or any other SARS

official) will unavoidably incur criminal sanctions whatever he does, and

whichever provision he attempts to honour. If the phrase “without just cause” is

given its ordinary grammatical meaning, then no inescapable criminal

“consequences … flow”162 by operation of law.

63. The ordinary grammatical meaning which the Maenetje SC opinion attaches to

the phrase “without just cause” is consistent with the principles of statutory

interpretation confirmed by this Court (as shown above), and supported by the

160
Ex parte Speaker of the KwaZulu-Natal Provincial Legislature: In re Certification of the Constitution
of the Province of KwaZulu-Natal, 1996 1996 (4) SA 1098 (CC).
161
Id at para 24, cited in the Maenetje SC opinion (at Record vol 2 p 121 para 15).
162
Record vol 2 p 104 para 60; Record vol 2 p 106 para 71.
 33

judgment in Kader.163 Kader is correctly cited and applied in the Maenetje SC

opinion,164 and the Public Protector does not suggest otherwise.

64. The Sikhakane SC opinion, for its part, also does not suggest otherwise. Instead,

it in terms confirms that “[t]he Act [i.e. the PPA] expressly empowers the Public

Protector to subpoena any information …”.165 Thus it correctly accepts, as the

Public Protector does in her pleadings, that the empowering provision

authorising issuing subpoenas is contained in the PPA, not the Constitution.166

Therefore, also for this reason,167 in the words used in the Sikhakhane SC

opinion, the question for advice cannot be approached on the a priori basis that

it is “trite law that the TAA cannot have the power of watering down the

constitutional powers of the Public Protector”.168

65. The correct question is whether the PPA confers subpoena powers capable of

“compelling the provision of information” which “overrides the secrecy

provision of the TAA.”169 In its own terms, the PPA demonstrably does not. It

respects a SARS official’s obligation to safeguard the privacy in taxpayer

information.

163
Attorney-General, Transvaal v Kader supra.
164
Record vol 2 p 120 para 14.2.
165
Record vol 2 p 133 para 14.
166
This is, as mentioned, explicitly accepted by the Public Protector herself (Record vol 2 p 102
para 43).
167
Apart from the Public Protector’s acknowledgment that her powers are not rendered ineffective, and
certainly not nugatory, by section 11(3) of the PPA read with the relevant provisions of the TAA.
168
Record vol 2 p 141 para 35.
169
Record vol 2 p 141 para 35.
 34

66. Therefore, contrary to the Public Protector’s second defence, SARS’ conduct

was entirely consistent with the PPA and the TAA. It adopted what courts have

consistently confirmed (in caselaw to which we revert below) is “a perfectly

proper approach”, namely the “fiscus could not be seen to … relinquish [the]

right to confidentiality of the taxpayer’s information”.170

(3) The Public Protector’s claim for disclosure of taxpayer information

“if all else fails”

67. The conceptual confusion in the Public Protector’s final purported defence a quo

is self-evident. She contends for precisely the same information contained in

the 2019 subpoena in the event that her arguments have been dismissed by the

Court. This she aims to accomplish by a conditional counter-application.

68. However, the conditional counter-application is formally and substantively

defective on multiple bases identified already in SARS’ replying affidavit filed

before the High Court.171 The Public Protector did not attempt to meet them in

any fourth affidavit serving as a replying affidavit in her counter-application a

quo.

69. The formal defect in the conditional counter-application is fundamental. It

infringes the right to a fair hearing entrenched in section 34 of the Constitution

170
Welz v Hall 1996 (4) SA 1073 (C) at 1083I/J-1084A.
171
Record vol 2 p 146 para 8; Record vol 2 p 148 para 13; Record vol 2 p 155 paras 33-34; Record
vol 2 pp 158-162 paras 43-52.
 35

itself. This is in that no proper notice, as laid down in the clearest terms in

Rule 6(7) or Rule 6(11) of the Uniform Rules of Court,172 was provided. It does

not suffice in the circumstances of this case to insert a prayer for relief in an

answering affidavit after other co-respondents have already indicated that they

do not oppose the application, and therefore did not intend to participate in the

proceedings. Such litigants cannot reasonably be expected to trawl through

papers filed months later by a co-respondent to check whether relief is not

suddenly sought which affect their rights and interests adversely. It is a notice

of motion which alerts litigants of such relief. None was filed by the Public

Protector, and no steps were taken by her to ascertain that her co-respondents

(particularly the fourth respondent) were apprised of the relief she conditionally

sought in her counter-application a quo.

70. Despite this defect being pointed out in SARS’ replying affidavit (which

effectively constitutes an answering affidavit to the purported conditional

counter-application, and therefore precipitated a further affidavit by the Public

Protector),173 it had not been remedied.174 This is inexcusable, particularly by

the Public Protector. She not only claims legal training.175 She is also – as this

172
Rule 6(11) requires that interlocutory and other applications incidental to pending proceedings may
be brought on notice supported by such affidavits as the case may require. Rule 6(7) provides for
counter-applications, which are governed by the ordinary principles applicable to applications
(including the rule that they must be brought on notice).
173
Record vol 2 p 148 para 13; Record vol 2 p 155 para 34; Record vol 2 p 162 para 52.
174
The Public Protector neither filed any affidavit in response, nor any notice setting out the relief
sought in her purported counter-application.
175
Record vol 2 p 108 para 87.
 36

Court confirmed – under a “higher duty … to respect the law, to fulfil procedural

requirements and to tread respectfully when dealing with rights.”176

71. Secondly, the counter-application is in any event also substantively defective.

Demonstrably the first three legal requirements for the relief sought had not been

satisfied.177 The Public Protector completely failed to establish that the taxpayer

information sought cannot be obtained elsewhere; that the primary mechanisms

available under the TAA for obtaining the information (which is, self-evidently,

to request it from the taxpayer concerned) is unavailing; and that the information

sought was indeed central to the case.178 The highwater mark of her case is that

“the information is necessary”,179 but even this is clearly incorrect.180

72. Instead, the Public Protector attempted to introduce a tweet which she contends

can be attributed to Mr Zuma.181 If it is indeed attributable to him, and if the

176
Public Protector v South African Reserve Bank supra at para 155.
177
The relief sought is governed by section 69(5) of the TAA. It provides
“The court may not grant the order [to disclose taxpayer information] unless satisfied that the
following circumstances apply
(a) the information cannot be obtained elsewhere;
(b) the primary mechanisms for procuring evidence under an Act or rule of court will yield or
yielded no or disappointing results;
(c) the information is central to the case; and
(d) the information does not constitute biometric information.”
178
The “case” which Mr Maimane lodged with the Public Protector concerned (as the 2019 subpoena
records) “allegations of impropriety and conduct failure by former President Jacob Gedleyihlekisa
Zuma”, and Mr Maimane “requested the Public Protector to investigate the alleged payment of a
monthly salary of R1 million to former President Zuma” which he had allegedly failed to “declare” and
disclose particulars of to the Secretary of Cabinet” (Record vol 1 p 77 paras 7.1-7.4). None of this is
information obtainable from SARS.
179
Record vol 2 p 107 para 79.
180
All that was “necessary” was to inquire from Mr Zuma whether he had received the alleged salary;
and, if so, disclosed it to the Secretary of Cabinet, if required.
181
The admissibility of this tweet is contested on the bases set out in SARS’ replying affidavit (Record
vol 2 pp 150-152 paras 20-25).
 37

tweet is accurate, then she should have attempted to obtain the information from

Mr Zuma himself.182 She did not attempt to do so,183 and only vaguely averred

in her answering affidavit that attempts were made to seek a confirmatory

affidavit from Mr Zuma.184 Demonstrably no attempt was made to obtain the

information from him himself. Nor to obtain Mr Zuma’s consent for its

disclosure. Why this was not done has not been disclosed (and the failure was

not sought to be remedied) by the Public Protector before the High Court.185 This

failure is still not explained before this Court – despite SARS specifically noting

this defect in the Public Protector’s case.186

73. Thirdly, further fundamental issues of law operate against the Public Protector.

The legal position has been clear, the operative legislation is not under

constitutional attack, and the Public Protector did not ask the High Court (and

does not now ask this Court) to depart from any established principle of law.

74. It is “well-established law that a Court will not lightly direct an official of the

Revenue to divulge information imparted to him by a taxpayer.”187 This is for

reasons of sound public policy.188 In giving effect to this important policy, the

182
Record vol 2 p 150 para 20.
183
Record p 158 para 43.
184
Record vol 2 p 94 para 9.
185
Record vol 2 p 150 para 19.
186
See particularly Record vol 2 pp 158-162 paras 43-52.
187
Welz v Hall 1996 (4) SA 1073 (C) at 1076G/H.
188
Estate Dempers v Secretary for Inland Revenue 1977 (3) SA 410 (A) at 420A-C (per Corbett JA, as
he then was), approving Silver v Silver 1937 NPD 129 at 134. The latter judgment explains that
“in the case of income tax returns and in matters in connection therewith, there is definite
statutory provision that these documents should be regarded as secret though the last words of
the subsection quoted seem to imply that the court has a discretion in the matter. The reason
why the statute requires these income tax returns, and all information obtained by officials of
 38

“Legislature has thought it desirable to encourage full disclosure of their affairs

by taxpayers, even by those who carry on illegal trades or have illegally come by

amounts qualifying as gross income.”189 This legislated legal policy object

would be defeated if orders were too readily made for disclosure of those

communications.190 Therefore departure from the principle that privacy in

taxpayer information must be protected by courts should not be permitted

without sufficient cause.191

the Revenue Department in connection with them to be kept secret is apparent. For the purpose
of the administration of the Income Tax Act, it is necessary that the fullest information should
be available to the Department of Inland Revenue. If that information is to be obtained, there
must be some guarantee as to secrecy. It is obvious that if courts were to be in the habit of
making orders requiring such information to be disclosed in suits between private individuals,
there could be no guarantee at all as to secrecy and the difficulties of the Department of Inland
Revenue would be greatly increased. On grounds of public policy the department should be
enabled to carry out its duty without being hampered and, if I were to make the order for
disclosure of the information and documents asked for in this case, I should certainly be
hampering the department in carrying out its duties. It may be that, if the order were made, the
plaintiff might obtain some evidence which would assist him in establishing his contentions,
but the mere fact that the plaintiff might be enabled to obtain such evidence is not a sufficient
ground for making the order, and I consider I must uphold the contention that the officials
concerned are justified in withholding the documents, and in declining to disclose the
information.”
189
Welz v Hall supra at 1076I-1077A.
190
Greenspan v R 1944 SR 149 at 155-156, cited with approval in R v Kassim 1950 (4) SA 522 (A)
at 526G.
191
Ontvanger van Inkomste, Lebowa v De Meyer NO 1993 (4) SA 13 (A) at 26A-C.
 39

75. These principles and precedents have been applied consistently by South African

courts.192 The same applies to their comparative counterparts.193 For instance,

the Supreme Court of Canada explained the important implications of the legal

principles applicable to taxpayer information thus:194

“At the outset, it is worth noting that the taxation of income in Canada has been
and is based on a self-assessment and self-reporting system. Confidentiality of
taxpayer information has been an important part of our income tax collection
system.”195

192
See e.g. Sackstein NO v South African Revenue Service 2000 (2) SA 250 (E) at 257G-258B
“In exercising its discretion, the Court shall have regard to the aims and objects of the provisions
viewed in the full context of the Acts. The purpose of both Acts, and therefore also of the
secrecy provisions, is the optimum collection of the State’s revenue. The underlying idea is that
this objective will be promoted by the free flow of information between taxpayer and tax
collector. To that end, the secrecy provisions are designed to afford the taxpayer the assurance
that information conveyed by him to the Commissioner will not fall into the hands of other
persons or government departments. (Jeeva v Receiver of Revenue, Port Elizabeth 1995 (2)
SA 433 (E) at 458E.) This thinking is expressed as follows in Silke on South African Income
Tax 11th ed vol 2 at para 18.2:
‘(I)t is the function of s 4 to ensure that secrecy is rigorously maintained about the details
of a taxpayer’s affairs and so encourage him to be truthful in reporting those details to
Inland Revenue, even if he cannot afford their disclosure to his personal or business
associates, competitors or even some other departments of the Government.’
The provisions are said to have the secondary and subsidiary purpose of preventing the
disruption to the functioning of the revenue service which would result from unrestricted rights
of access by all for any purpose to the records of the Commissioner (Silver v Silver 1937
NPD 129 at 134; Estate Dempers v Secretary for Inland Revenue 1977 (3) SA 410 (A) at 420B-
C; Welz v Hall 1996 (4) SA 1073 (C) at 1076J-1077E).
See similarly Hyundai Motor Distributors (Pty) Ltd v Smit NO 2000 (2) SA 934 (T) at 955I-956A which
(after citing Estate Dempers v Secretary for Inland Revenue 1977 (3) SA 410 (A) at 420B-C; Ontvanger
van Inkomste, Lebowa v De Meyer NO 1993 (4) SA 13 (A) at 25I-J; Jeeva v Receiver of Revenue, Port
Elizabeth 1995 (2) SA 433 (E) at 458D-F and Welz v Hall 1996 (4) SA 1073 (C) at 1076G) held that
“[t]he guarantee of secrecy contained in these provisions is to encourage full disclosure of their tax
affairs by taxpayers. In the absence of such guarantee there will not be full disclosure which will be to
the detriment of the tax authorities and accordingly the fiscus.”
193
See e.g. R v Parker 1966 (2) SA 56 (R), in which the Appellate Division of Southern Rhodesia held
that “[a]s far as possible the right of a person to keep information to himself is respected and it is only
when respect for privacy would or might adversely affect the interests of justice that the law intervenes
to compel a person to speak” (id at 58D). Therefore a statutory provision authorising evidence being
obtained under subpoena issued by a magistrate “constitutes an inroad into the right of privacy” (id
at 58D-E). This right enjoys in-principle protection (id at 58H).
194
Slattery v Doane Raymond Limited, Trustee of the Estate of Raymond P. Slattery, a Bankrupt
[1993] 3 SCR 430.
195
Id at 441-442.
 40

76. The same considerations apply in South Africa. Therefore the same legal

conclusion should apply, particularly in the light of the South African

Constitution’s entrenchment of the right to privacy. As was confirmed in

Slattery by the apex constitutional court for Canada, the equivalent provision

(governing taxpayer information under Canadian law)

“involves a balancing of competing interests: the privacy interest of the taxpayer

with respect to his or her financial information, and the interest of the Minister
in being allowed to disclose taxpayer information to the extent necessary for the
effective administration and enforcement of the Income Tax Act and other
federal statutes referred to in s. 241(4).
Section 241 reflects the importance of ensuring respect for a taxpayer’s privacy
interests, particularly as that interest relates to a taxpayer’s finances. Therefore,
access to financial and related information about taxpayers is to be taken
seriously, and such information can only be disclosed in prescribed situations.
Only in those exceptional situations does the privacy interest give way to the
interest of the state.
As alluded to already, Parliament recognised that to maintain the confidentiality
of income tax returns and other obtained information is to encourage the
voluntary tax reporting upon which our tax system is based. Taxpayers are
responsible for reporting their incomes and expenses and for calculating the tax
owed to Revenue Canada. By instilling confidence in taxpayers that the personal
information they disclose will not be communicated in other contexts,
Parliament encourages voluntary disclosure of this information. The opposite is
also true: if taxpayers lack this confidence, they may be reluctant to disclose
voluntarily all of the required information (Edwin C. Harris, Canadian Income
Taxation (4th ed. 1986), at pp. 26-27).”196

196
Id at 443-444.
 41

77. Accordingly the Supreme Court of Canada concluded

“This legislative interpretation [precluding disclosure of taxpayer information

absent statutory authority] accords with the necessary balancing of privacy and
state interests which takes place in s. 241. Confidentiality of tax information is
necessary in order to promote the privacy interests of taxpayers and the success
of voluntary tax reporting.”197

78. Thus the South African and comparable legal position is, as the above cases

confirm, that “[a] court will be most reluctant to order disclosure of information

if such information can be obtained elsewhere”.198 It is only if alternative sources

or procedures “have, through no fault of an applicant, yielded disappointing

results that a Court would ordinarily think of exercising its power in terms of

section 4(1) [of the predecessor to section 69(2)(c) of the TAA].”199 It is

accordingly “necessary to look at the adequacy or otherwise of the steps taken

by the applicants to procure evidence elsewhere than from [SARS].”200

79. In this case there has been no steps at all by the Public Protector to procure the

taxpayer information from anyone other than SARS itself. The first simple

inquiry would, could and should first have been directed to one of the two

taxpayers concerned, Mr Zuma, asking him whether he had indeed been on the

payroll of the fourth respondent and whether he had disclosed this to the

197
Id at 447.
198
Welz v Hall supra at 1077F/G.
199
Id at 1077H.
200
Id at 1080A-B, noting that the application in that matter was “entirely silent in this respect”, and that
a court would expect that parties seeking the exercise of a discretion in their favour should, at the very
least, explain that the evidence that they require has not been procurable from anyone else.
 42

Secretary of Cabinet. To this day the Public Protector has provided no

explanation for not doing so since the undisclosed date on which Mr Maimane

lodged his complaint precipitating the 2018 subpoena.

80. Yet the Public Protector now seeks to approach this Court directly on the basis

that the dispute is now suddenly “relatively urgent”, and that “[n]o adequate and

substantial relief will be obtained if the matter is first referred to the Full Court

and/or the Supreme Court of Appeal”.201 But the Public Protector failed

since 2018 to institute her own application for this relief,202 which SARS

consistently stated it would not have opposed if a competent case had been

established for such relief.

81. The afterthought conditional counter-application demonstrably fails to comply

with the law in multiple respects, and was therefore correctly dismissed with

costs by the High Court. The Public Protector’s application to this Court does

not establish that the High Court erred in this (or any other) respect.

E. The Public Protector’s case before this Court

82. The Public Protector’s application for leave to appeal to this Court is addressed

comprehensively in SARS’ opposing affidavit.203 Space limitations do not

201
Record vol 3 p 217 para 72.
202
Record vol 4 pp 326-327 paras 117-118, demonstrating that also in other respects any contended
urgency (of whatever degree or relativity) is contrived.
203
Record vol 4 pp 278-332.
 43

permit a full treatment of all the defects in the Public Protector’s application. We

therefore respectfully request that SARS’ opposing affidavit be read, particularly

for purposes of determining the first question for consideration. It is whether

leave to appeal directly to this Court from the High Court ought to be granted.

83. This Court recently considered this very issue in an application for leave to

appeal directly from the High Court by inter alios the Public Protector.204 The

Public Protector’s written submissions correctly concede that this judgment is

indeed “directly applicable”.205 But it is not addressed at all by the Public

Protector, other than in the context of costs. This Court’s judgment is

demonstrably unanswerable in the context of leave to appeal.

84. EFF v Gordhan; Public Protector v Gordhan unanimously confirms this Court’s

earlier caselaw, in which it was

“cautioned that [this Court] will not grant leave to appeal merely because an
applicant is aggrieved by a lower court’s application of the law. In Mankayi, it
was observed that ‘this Court has refused to entertain appeals that seek to
challenge only factual findings or the incorrect application of the law by the
lower courts’. Thus, for this Court to adjudicate on the merits of a matter, that
matter must ‘not merely involve the application of an uncontroversial legal test
to the facts’. Similarly, in Jiba, this Court held that the application of an
established legal test does not raise an arguable point of law which would
ground our jurisdiction.”206

204
Economic Freedom Fighters v Gordhan; Public Protector v Gordhan 2020 ZACC 10.
205
Public Protector’s written submissions para 140.
206
EFF v Gordhan; Public Protector v Gordhan supra at para 39, citing Mankayi v AngloGold Ashanti
Ltd 2011 (3) SA 237 (CC) at para 12; Minister of Safety and Security v Luiters 2007 (2) SA 106 (CC)
 44

85. As mentioned, in this case the Public Protector does not contend for a different

application of the established legal test governing the disclosure of taxpayer

information. She contends for the application of what she argues is the

established legal standard arising from EFF v Speaker, National Assembly.207 As

we have shown, this judgment, too, does not support her.

86. Returning to EFF v Gordhan; Public Protector v Gordhan, Khampepe ADJP

(writing for a unanimous Court) confirmed that the mere fact that constitutional

questions are raised does not necessarily justify leave to appeal.208 Prospects of

success is an important consideration, and arguments which are “novel and

interesting” but “ha[ve] no merit” do not warrant this Court’s consideration.209

This applies specifically in the context of an “argument that the Public Protector

exercises a constitutional power”, which this Court held “does not render her

unique to the extent that a stricter tests is required”.210 No compelling reason

exists, this Court held, “to create a special test applicable to the Public

Protector.”211

at para 27; Phoebus Apollo Aviation CC v Minister of Safety and Security 2003 (2) SA 34 (CC) at para
9; S v Boesak 2001 (1) SA 912 (CC) at para 15; Loureiro v Imvula Quality Protection (Pty) Ltd 2014
(3) SA 394 (CC) at para 33; and General Council of the Bar of South Africa v Jiba 2019 (8) BCLR 919
(CC) at para 59.
207
Record vol 3 p 218 para 75; Record vol 4 pp 328-329 para 121.
208
EFF v Gordhan; Public Protector v Gordhan supra at paras 45-46.
209
Id at para 53.
210
Ibid.
211
Id at para 54.
 45

87. The Court held that the Public Protector’s purported bypassing of the appeal

hierarchy of courts militated against entertaining a direct appeal,212 and reiterated

that “a direct appeal is not merely available for the asking”, and that “exceptional

circumstances must exist before this Court can condone the bypassing of the

channels of appeal in the lower courts” least “the interests of justice

considerations” – which governs this Court’s jurisdiction – be impeded.213 On

this basis the Court refused leave to appeal, save insofar as the application of the

Biowatch principle arose in the context of costs.214

88. In that case leave to appeal was granted exclusively in relation to costs, since the

High Court provided no reasons to justify a personal costs order mero motu

against Ms Mkhwebane,215 despite the Public Protector having invoked the

Biowatch principle.216 In this case the Public Protector explicitly disavowed any

reliance on the Biowatch principle;217 a personal costs order against her was

specifically sought and granted in the terms formulated in SARS’ notice of

motion,218 founding affidavit,219 and heads of argument;220 and the High Court

provided extensive reasons for such order,221 after having invited and considered

212
Id at para 68.
213
Id at para 72.
214
Ibid.
215
Id at para 87.
216
Id at para 25.
217
Public Protector’s written submissions para 128.
218
Record vol 1 p 2 prayer 7.
219
Record vol 1 p 40 para73.
220
SARS’ High Court heads of argument at para 70(b), which are not included in the record before this
Court.
221
Record vol 3 pp 266-271 paras 49-52.
 46

yet further submissions on costs from both parties,222 and applying this Court’s

caselaw (including judgments particularly applicable to costs against the Public

Protector).223

89. This Court’s judgments support the High Court’s conclusion on costs, and

demonstrate that no scope for interference in the High Court’s wide discretion

exists.224 Particularly not in circumstances where the Public Protector’s conduct

in the litigation has demonstrably been manifestly unreasonable, negligent and

inconsistent with her constitutional obligations and the law. She undertook

before the High Court to explain at the hearing why a confirmatory affidavit by

Mr Zuma could not be obtained.225 At the hearing she did not do so. When a

belated affidavit was purportedly filed by Mr Zuma on the previous day, she did

not support its admission. Now she contends, before this Court (in written

argument) that that affidavit – purportedly filed at the eleventh hour by Mr Zuma,

and on which the Public Protector placed no reliance – had somehow overtaken

her undertaking to the Court.226

222
Record vol 4 p 323 para 106; Record vol 2 pp 173-183.
223
Record vol 3 pp 266-267 paras 49-50, citing and applying Public Protector v South African Reserve
Bank supra; Black Sash Trust v Minister of Social Development 2017 (9) BCLR 1089 (CC); and South
African Social Security Agency v Minister of Social Development 2018 (10) BCLR 1291 (CC).
224
Public Protector v South African Reserve Bank supra at para 144; EFF v Gordhan; Public Protector
v Gordhan supra at para 79; Florence v Government of the Republic of South Africa 2014 (6)
SA 456(CC) at para 113.
225
Public Protector’s High Court heads of argument at para 67, in which it was stated that
“For reasons which will be explained at the hearing, the [Public Protector] was not at liberty to
disclose the reasons why an affidavit could not be obtained from the taxpayer in question (i.e.
the second respondent [Mr Zuma]). This matter will be more fully explained in due course
and/or from the Bar.”
Although attention was drawn to this in argument, none was offered.
226
Public Protector’s written submissions at para 139.
 47

90. Her founding affidavit in this Court further contains material non-disclosures;227

persists in advancing bald and spurious excuses;228 unwarrantably accuses the

High Court of misrepresenting the Public Protector’s argument;229 misstates

material parts of the High Court’s judgment;230 and continues to contend –

despite this Court’s judgment in EFF v Gordhan; Public Protector v Gordhan

and Public Protector v South African Reserve Bank for exceptionalism

applicable to herself, a higher status than other Chapter 9 institutions,231 and a

supra-statutory stratosphere permitting her to exercise subpoena and other

powers irrespective of any applicable legislation232 – including her own

legislation, which she herself concedes constitutes the source conferring

subpoena powers.233

227
E.g. claiming that she had received no notice of the request for a personal costs order against herself
(Record vol 3 p 212 para 56; Record vol 4 p 300 para 55; Record vol 4 p 322 para 105); and omitting
to disclose the opportunities provided by the High Court to address the issue of costs (Record vol 4
p 300 para 55).
228
E.g. the claim that her busy schedule is “mainly” the basis for not informing SARS of the Sikhakhane
SC opinion (Record vol 2 p 104 para 58), despite various engagements with SARS – e.g. on 11
October 2019 (Record vol 1 p 25 para 35), when the issue of compellability of taxpayer information
was raised by the Public Protector herself (Record vol 1 p 25 para 36) without a word as regards the
status of any such opinion, which is dated many months earlier: 7 May 2019 (Record vol 2 p 143). See
further Record vol 4 p 292 para 34; Record vol 4 p 298 para 52.
229
Record vol 3 pp 207, 209, 211-212 paras 36, 43 and 53.
230
E.g. contending that the High Court “erred in finding that the mere holding of a different opinion …
was in fraudem legis” (Record vol 3 p 202 para 22). This is demonstrably incorrect (Record vol 4 p 306
para 69). Nor did the High Court hold, as the Public Protector deposed, that “the Public Protector’s
failure to share the Sikhakhane SC opinion with the SARS Commissioner was by definition a sign of
mala fides” (Record vol 3 p 203 para 25; Record vol 4 p 307 para 72). Nor did the High Court err in
referring to the Public Protector’s legal qualifications in circumstances where she herself invoked them
(Record vol 3 p 208 para 40; Record vol 4 p 313 para 83). Nor did the High Court fail to sustain its
conclusion (or make a “bare” finding) that the counter-application was not established (Record vol 3
p 211 para 51; Record vol 4 p 318 para 93, referring to Record vol 3 pp 262-264 para 44).
231
Public Protector’s written submissions para 63.
232
Record vol 2 p 102 para 43.
233
Record vol 2 p 102 para 43.
 48

91. Her written submissions, for their part, substantially reproduce the contents of

the Public Protector’s founding affidavit. They demonstrably fail to meet SARS’

opposing affidavit.234 They advance non sequiturs.235 They make bald assertions

unsupported by any record reference.236 And they contain crucial concessions.237

F. Conclusion and appropriate relief

92. The Public Protector’s case is devoid of merit in every aspect. Moreover, in

multiple respects the Public Protector’s conduct in this litigation directly

contradicts binding law. None of the governing statutory provisions of judicial

precedents is sought to be impugned, distinguished, developed or disapplied by

the Public Protector. Instead, she has litigated in the teeth of these precedents,

and despite their full ventilation by SARS before the High Court already. The

234
E.g. Public Protector’s written submissions para 71 (which is addressed at Record vol 4 p 299 para 53
and Record vol 4 p 310 para 77). SARS’ opposing affidavit demonstrates – with reference inter alia to
this Court’s judgment in Dawood supra – that neither section 7(2) of the PPA nor section 67(4) of the
TAA assists the Public Protector’s argument regarding “in-built safeguards”.
235
E.g. Public Protector’s written submissions para 118, which contends that since SARS did not oppose
the conditional counter-application on the basis of section 69(4) of the TAA therefore it “must be
regarded as unopposed”. Section 69(4) provides additional bases of opposition, and does not preclude
SARS from opposing the relief on the basis that the requirements therefor are not satisfied under
section 69(5). A further example is Public Protector’s written submissions at para 137. It does not
follow in law or logic that a “[f]ailure” to reject a ground contended baldly by a litigant to be “baseless”
somehow “amounts to a material misdirection”.
236
E.g. Public Protector’s written submissions para 119.1, which asserts that “the taxpayer information
in question is the sole preserve of SARS and that there is no indication that it is attainable anywhere
else”. No factual basis is established for this proposition. The Public Protector bore the burden to
establish it. The allegation is, furthermore, quite inconsistent with the simple inquiry actually required
for purposes of investigating Mr Maimane’s complaint invoked for purposes of the subpoena. Similarly
the contentions advanced in the rest of para 119 are untenable. Significantly, it is only contended that
“the information has a bearing on the investigation” (Public Protector’s written submissions at
para 119.1). This fails completely to satisfy the requirement in section 69(5)(c) of the TAA that the
information must be “central to the case”.
237
E.g. Public Protector’s written submissions para 26. Even if “the applicant herein” is to be read as
“the first respondent” (for which no factual basis exists, and no record reference is provided) then the
remaining arguments in that paragraph operate directly against the Public Protector.
 49

High Court correctly applied binding precedent, including the caselaw of this

Court.

93. 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 negligently failed to provide SARS with the

legal advice intended to counter the legal opinion obtained by SARS and the

Public Protector jointly, and disclosed it for the first time in her answering papers

filed in the High Court. She litigated with reckless disregard for various

procedural requirements, substantive rights, and constitutional principles. She

also wantonly accused the Commissioner of violating the law and the

Constitution, persisting in this stance even before this Court. She attacks SARS’

counsel for an attributed constitutional “nostalgia”. She asserts her own

knowledge as a lawyer, and she has access to attorneys and senior and junior

counsel. She is not an unrepresented or underrepresented or untrained litigant,

but the holder of an important Chapter 9 office.

94. In litigating in this fashion the Public Protector has failed to remedy her conduct

in litigation on which this Court adversely commented in Public Protector v

South African Reserve Bank. As this Court confirmed, where organs of State

(and more specifically the Public Protector herself) litigates in such fashion,

courts can and should make an appropriate, punitive de bonis propriis costs order
 50

against her.238 This the High Court did, and this Court’s recent judgment in EFF

v Gordhan; Public Protector v Gordhan confirms the competence of such costs

orders and the limit bases on which a court of appeal will interfere with such

order. None of these bases exists in this case. She herself sought a punitive costs

order against SARS before the High Court,239 and cannot now complain that one

was impermissibly granted against herself.

95. We accordingly ask that the application for leave to appeal be dismissed with

costs. The Public Protector herself accepts before this Court that costs should

follow the event if her appeal fails. The same should apply a fortiori to the

dismissal of the application for leave to appeal directly to this Court, particularly

in the light of this Court’s judgment in EFF v Gordhan; Public Protector v

Gordhan. It reiterates (in litigation specifically concerning the Public Protector)

the relevant principles governing not only costs but also direct appeals.

J.J. GAUNTLETT SC QC
F.B. PELSER

Counsel for the Commissioner

Chambers
Cape Town

11 August 2020

238
Public Protector v South African Reserve Bank supra at para 237.
239
Record vol 2 p 109 para 94.