Johannesburg - Public Protector advocate Busisiwe Mkhwebane’s losing streak in civil cases against her continues to pile up - while similar cases are still pending.
On Monday, Mkhwebane was again hit with a punitive order to pay SA Revenue Service (Sars) commissioner Edward Kieswetter almost R1 million out of her pocket following her failed bid to force Sars to reveal former president Jacob Zuma’s tax affairs.
Mkhwebane lodged a court application against Sars despite the same revenue authority having paid for her legal services, which advised her that it would be illegal for Sars to reveal Zuma’s tax documents.
A senior counsel and junior counsel also advised Mkhwebane to approach the high court to find out if her powers supersede that of Sars’s Tax Administration Act. She ignored the advice, the court found.
Instead, she tried to force Kieswetter to reveal that information and she lost in the North Gauteng High Court.
In his ruling, Judge Peter Mabuse said: “The public protector’s subpoena powers do not extend to taxpayer information.”
Mkhwebane was ordered to pay 15% of Kieswetter’s legal costs.
A similar high court order was made in her legal challenge against the Reserve Bank/Absa - a decision that was further endorsed by the Constitutional Court.
Mkhwebane’s troubles began in October 2019 when she initially subpoenaed then Sars acting commissioner Mark Kingon.
At the time, Mkhwebane was investigating a complaint by former DA leader Mmusi Maimane that Zuma received R1m from Royal Security Company while he was at the helm.
These allegations were contained in a book - The President’s Keepers - written by journalist Jacques Paauw.
During Kieswetter’s reign - Sars then paid senior lawyers for legal advice to resolve the dispute between them. The senior lawyers concurred that Sars would be in breach of the law.
The lawyers, however, advised Mkhwebane to approach the high court to determine the limitations of her powers, but she ignored the advice.
Further in his judgment, Judge Mabuse said: “In my view, by persisting with the issuing of the subpoena despite the explanation by the commissioner that he was manacled by provision of Section 69 of the TAA from disclosing such taxpayer information; ignoring legal advice from senior and junior counsel tells us something about the public protector.”
Mabuse further said all these factors demonstrate that the public protector either misunderstood the law or, if she understood it, she simply ignored it.
“That shows the proclivity of the public protector to operate out of the bounds of the law. She has an inexplicable deep-rooted recalcitrance to accept advice from senior and junior counsel.
“The public protector acted unreasonably, arbitrarily and in bad faith when she issued the 2019 subpoena.”
He was adamant that Mkhwebane’s powers emanate from the Public Protector Act (PPA) and not from the constitution, saying they do not trump the provisions of the Tax Administration Act (TAA).
“She does not have more powers than the constitution and national legislation confer on her. She is not at large to upstage the Constitution. We know of no law that gives her unfettered powers to ignore the Constitution and national law, in particular the TAA,” Mabuse said.
He added: “One of the requirements she had to satisfy for her appointment as the public protector was that she had to be an advocate. There was a reason for this requirement, and that reason was that the expectations were high that she would understand the law and she would apply it in her daily conduct. She would not adopt a devil-may-care attitude in the face of the law, advice and genuine legal opinion.”
In his order, the judge found that Kieswetter had made a strong case against Mkhwebane.
Meanwhile, Sars has welcomed the ruling.
It said in a statement: “In brief, the high court has confirmed that Sars is permitted in law, and in fact required, to withhold taxpayer information from the public protector. Sars is studying the judgment carefully and will provide a reasoned response in due course.”