Mkhwebane vs SARS: Mogoeng questions personal costs order against Public Protector

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Public Protector Busisiwe Mkhwebane at a Parliamentary meeting in October 2019.
Public Protector Busisiwe Mkhwebane at a Parliamentary meeting in October 2019.
PHOTO: Jan Gerber, News24
  • Public Protector Busisiwe Mkhwebane and SARS battled it out in the Constitutional Court over former president Jacob Zuma's tax records.
  • The Gauteng High Court in Pretoria ruled that SARS may withhold taxpayer information.
  • Mkhwebane had been attempting to access Zuma's tax record from SARS.

The Constitutional Court on Thursday heard arguments in a battle between Public Protector Busisiwe Mkhwebane and the SA Revenue Service (SARS) over former president Jacob Zuma's tax records.

Business Day reported that Chief Justice Mogoeng Mogoeng had questioned the personal costs order granted against Mkhwebane by Pretoria High Court Judge Peter Mabuse.

In March, Mabuse ruled that SARS may withhold taxpayer information, Fin24 reported at the time.

Mkhwebane had been attempting to access Zuma's tax records from the revenue service.

However, her counterclaim was dismissed with costs.

Mkhwebane was ordered to pay 15% of SARS Commissioner Edward Kieswetter's legal costs out of her own pocket.

Mabuse also ruled that officials at the tax agency are permitted to withhold taxpayer information.

He said Mkhwebane's subpoena powers do not extend to taxpayers' information.

A 'number of falsehoods'

This is not the first time Mkhwebane had been ordered to pay personal costs. Last year, the Constitutional Court ruled that Mkhwebane should pay 15% of the South African Reserve Bank's (SARB) legal fees in the Absa/Bankorp case.

The court found that Mkhwebane had put forward a "number of falsehoods" during litigation by the SARB against her June 2017 report, which recommended that Absa pay back R1.2 billion of an apartheid-era bailout and the SARB scope be widened to include economic growth, as Fin24 reported.

According to Business Day, Mabuse used the majority ruling in the SARB case to justify issuing a personal costs order, saying Mkhwebane had "proclivity" to operate outside the bounds of the law.

However, Mogoeng questioned if the court's order in the reserve bank case could justify that Mkhwebane had "proclivity" to act outside the bounds of law, the publication reported.

Mogoeng was quoted as saying, "What has the judge been reading to demonstrate some tendency, some track record of operating out of the bounds of the law? Where does that come from?".

According to IOL, Mkhwebane has expressed, "extreme displeasure with the litany of litigants seeking personal and punitive costs orders against her just because other courts have granted them".

 - Compiled by Jeanette Chabalala

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