SARS blocks access to Zuma’s tax records, again

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Key Takeaways

In May last year, the Constitutional Court ruled that the blanket exclusion of tax records from the Promotion of Access to Information Act (PAIA) was unconstitutional.
AmaBhungane and the Financial Mail argued that there was evidence former president Jacob Zuma did not file annual tax returns as is required by law, and that he received income from sources other than his government salary. On this basis there was sufficient public interest to warrant that his tax filings should be made public under PAIA.
The court referred the decision back to SARS but the tax authority now says some of the records could not be found or do not exist, while others cannot be disclosed because they may impact Zuma’s corruption trial.

The South African Revenue Service (SARS) will not reveal former president Jacob Zuma’s tax records, despite a Constitutional Court ruling that blanket tax secrecy is unconstitutional.

In a letter dated 1 December 2023, SARS said it cannot provide Zuma’s tax returns for the years 2010 – 2018 – the years he was in office – because, amongst other reasons, the records would not reveal evidence of a substantial contravention of or failure to comply with the law.

Zuma has been credibly accused of failing to file annual tax returns while he was president.

For an individual occupying such high office, failure to do so represents a serious contravention of the law and it is the public’s right to know whether this is the case.

The tax authority did not describe which test it applied in determining its decision, which means the public still has no idea whether the former president has ever filed annual tax returns for the years he was in office.

AmaBhungane and the Financial Mail first submitted a Promotion of Access to Information Act (PAIA) request to SARS in February 2019.

Following protracted litigation between the tax authority and these media organisations, the Constitutional Court handed down a landmark judgement in May 2023.

The Court ruled that certain provisions within the Tax Administration Act and PAIA were unconstitutional in that they provided blanket protections, guaranteeing taxpayer secrecy.

The Court said that there should be a “public interest override” that allows for some information to be released through mechanisms like PAIA. The Court also gave parliament two years to fix the flaws in the law.

With the judgement in hand, AmaBhungane and the Financial Mail approached SARS with a revised PAIA application in October last year.

In addition to the tax returns, the updated PAIA request also sought documents and correspondence that would indicate how SARS dealt with any issues relating to the former president’s tax affairs and how they communicated with other law enforcement agencies concerning these matters.

It also included specific requests for information that would indicate the nature of the relationship between Zuma and Royal Security – owned by ANC-linked businessman Roy Moodley – insofar as his tax obligations were concerned.

This was done to establish whether Zuma was, in fact, on the payroll of Royal Security for a period whilst already president, as alleged in Jacques Pauw’s book The President’s Keepers.

In relation to these additional documents, SARS argued that some of the records we requested did not exist or could not be found, while other records were denied on the basis that they could impede a criminal prosecution and thus possibly result in the miscarriage of justice.

SARS specifically referred to the trial currently underway in the KwaZulu-Natal High Court. These proceedings relate to charges of corruption Zuma is facing in relation to the 1999 Arms Deal.

The tax authority did not explain how our request, which centres on his time in office encompassing the tax years 2010 to 2018, would jeopardise proceedings at a trial relating to the Arms Deal, which was signed in 1999.

SARS also noted that neither Zuma nor Royal Security provided written consent to release the records.

It is unclear whether the tax authority asked either for a response.

The SARS tax case echoes another PAIA battle to force the ANC to release minutes from the party’s cadre deployment committee.

The Democratic Alliance applied for access to the records in terms of PAIA in 2021. Last week, the Constitutional Court turned down the ANC’s final bid to keep the documents secret and gave the party five days to hand over the records.

AmaBhungane and the Financial Mail will continue to engage with SARS in the Zuma tax records case; this will include asking for more information about the records that SARS was unable to locate.

We also intend to refer the refusals to the Information Regulator on appeal.

We believe that excessive tax secrecy, especially in the case of taxpayers who are grievously contemptuous of their responsibilities, benefits only the rich and powerful, whether they are individuals or corporates. The Zuma matter is therefore an important test case.