Protecting taxpayer information from the public protector – A ‘just cause’?

• Jurisdiction: South Africa
• Author: Moosa, F.
• Pages: 190-211
• DOI: https://doi.org/10.47348/JCCL/V6/i2a7
• Published date: 31 March 2021
• Date: 31 March 2021

https://doi.org/10.47348/JCCL/V6/i2a7 190

PROTECTING TAXPAYER

INFORMATION FROM THE PUBLIC

PROTECTOR – A ‘JUST CAUSE’?

FAREED MOOSA

Associate Professor at the Department of Mercantile & Labour Law,

University of the Western Cape

ABSTRACT

Under the Tax Administration Act, 2011 (TAA), taxpayers enjoy

a right to privacy of information disclosed to the South African

Revenue Service (SARS). This note shows that tax officials are obliged

to protect the secrecy thereof. It is argued that the Commissioner for

the SARS correctly resisted compliance with a subpoena issued by the

Public Protector for access to the records of former President Jacob

Zuma. If it acquiesced without objection, shock waves would have

reverberated through South Africa’s tax community. It is contended

that the Commissioner’s decision to maintain taxpayer secrecy under

pain of a potential criminal sanction contributed to restoring some

of the lost confidence and respect for the SARS which has, in recent

times, endured reputational damage owing to internal squabbles

which morphed into public scandals. This note hypothesises that

CSARS v Public Protector is good authority for the proposition that

governmental departments and state institutions not expressly

mentioned in s 70 of the TAA do not have statutory rights of access

to taxpayer information and must, to gain access, follow due process.

This note argues that the judgment in casu is not only a victory for

taxpayer rights but also for the rule of law.

Keywords: public protector; right to privacy; rule of law; secrecy

of taxpayer information; Tax Administration Act; taxpayer

confidentiality; taxpayer information.

I INTRODUCTION

The Preamble to the Tax Administration Act 28 of 2011 (TAA)

states that its aims include ‘to provide for the confidentiality of

information’. Chapter 6 thereof deals with this subject. First, s 69(1)

(s 69(1) reads: ‘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.’

(2020) 6(2) JCCL&P 190

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191

PROTECTING TAXPAYER INFORMATION FROM THE PUBLIC PROTECTOR –

A ‘JUST CAUSE’?

https://doi.org/10.47348/JCCL/V6/i2a7

For the definition of ‘SARS official’, see below, embodies a general

prohibition against disclosure by the South African Revenue Service

(SARS) of ‘taxpayer information,’ (in this case note, unless the context

indicates otherwise, ‘taxpayer information’ bears its meaning as

defined in the TAA. Section 67(1) distinguishes between ‘taxpayer

information’ and ‘SARS confidential information’ referred to in s

68(1). A discussion of the latter falls beyond the remit of this note) a

term defined in s 67(1)(b) as ‘any information provided by a taxpayer

(s 1 defines ‘information’ as including ‘information generated,

recorded, sent, received, stored or displayed by any means’ and for

the meaning of ‘taxpayer’ in this context, see s 151 of the TAA) or

obtained by SARS in respect of the taxpayer, including biometric

information.’ (Section 1 defines ‘biometric information’ to mean

‘biological data used to authenticate the identity of a natural person

by means of – (a) facial recognition; (b) fingerprint recognition;

(c) voice recognition; (d) iris or retina recognition; and (e) other, less

intrusive biological data, as may be prescribed by the Minister in

a regulation issued undersection 257’. The disclosure of biometric

information is regulated by s 69(7) of the TAA.)

Secondly, to bind SARS employees and to promote respect for

confidentiality of taxpayer information, ss 67(2)(a) and (b) respectively

oblige every SARS official, and senior SARS official referred to in s 70,

to undertake, by way of an oath or solemn declaration before a

magistrate, justice of the peace or commissioner of oaths, compliance

with the non-disclosure provisions of Chapter 6 (s 1 defines ‘SARS

official’ to mean ‘(a) the Commissioner; (b) an employee of SARS; or

(c) a person contracted or engaged by SARS, other than an external

legal representative, for purposes of the administration of a tax Act

and who carries out the provisions of a tax Act under the control,

direction or supervision of the Commissioner’ and in terms of s 6(3), a

‘senior SARS official’ is ‘(a) the Commissioner; (b) a SARS official who

has specific written authority from the Commissioner to do so; or

(c) a SARS official occupying a post designated by the Commissioner

in writing for this purpose’).

Thirdly, to bolster the protection afforded to taxpayer privacy

and to render ineffective any wrongful disclosure of information,

s 67(3) stipulates that if taxpayer information is disclosed contrary

to the prescripts of Chapter 6 then ‘the person to whom it was so

disclosed may not in any manner disclose, publish or make it known

to any other person who is not a SARS official’. Fourthly, s 67(4)

imposes a peremptory (‘must’) obligation on anyone receiving

taxpayer information under ss 69, 70 or 71 to preserve its secrecy and

‘only disclose the information to another person if the disclosure

is necessary to perform the functions specified in those sections’

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