Undeterred by an eviscerating judgment by Pretoria High Court Judge Peter Mabuse in March 2020, the public protector approached the Constitutional Court directly to appeal against the ruling.

Mabuse, dismissing Mkhwebane’s bid to flush former president Jacob Zuma’s tax records out of SARS, described her as “dishonest”, as having acted in “bad faith” and for being “improperly in flagrant disobedience of the Constitution”.

She was also ordered personally to pay 15% of SARS Commissioner Edward Kieswetter’s legal costs in that matter with her office [ie taxpayers] bearing the burden of the balance.

The Constitutional Court hearing with Mkhwebane as applicant and SARS, Jacob Zuma, Mmusi Maimane and Royal Security as respondents, has now been set down for Thursday 3 September 2020.

It was in his 2017, boil-lancing best-seller, The President’s Keepers, that Jacques Pauw revealed that between 2007 — when he was elected leader of the ANC and while he was deputy president, through to 2009, when he was elected president of South Africa — Jacob Zuma received about R5-million as a ghost employee of ANC benefactor Roy Moodley’s Royal Security.

This was an amount that came to light during a tax compliance check by SARS of Royal Security’s books between 2009 and 2010. If Jacob Zuma had indeed been employed by Royal, he failed to pay tax on the amount, never mind declare it as a side income.

In March 2020, the Zondo commission of inquiry heard that Moodley’s company received its first tender from Prasa in 2010 and had been paid more than R471-million since.

It was former DA leader Mmusi Maimane who lodged a complaint with the public protector and Mkhwebane has been at it ever since.

At this point the matter is no longer about Zuma’s tax affairs but, said the public protector in her submission to the Constitutional Court, “on the appropriate interpretation of the Constitution and relevant legislation”.

SARS Commissioner Edward Kieswetter has said that Mkhwebane’s insistence that her office had the right to access confidential taxpayer information was an indication that she was acting beyond her powers, and irrationally.

Kieswetter, through advocate Jeremy Gauntlett, in his Constitutional Court papers questioned why Mkhwebane had not simply approached Zuma.

He added that her bid had less to do with Zuma than with setting a precedent about the handing over of confidential tax information without a court order.

This will be Mkhwebane’s third attempt at compelling SARS to disclose Zuma’s tax records. The first, in 2018, resulted in the public protector and SARS jointly approaching counsel for an opinion. Mkhwebane had, at the time, said her office did not have a budget for this.

SARS contested the 2018 subpoena by the public protector to release the Zuma records saying it was bound by the Tax Administration Act and its “secrecy” and “confidentiality regime”.

In that instance, advocate Hamilton Maenetje advised that the public protector could not subpoena SARS for the information but should, instead, approach court for an order to obtain the consent of the taxpayer or get Zuma to do so willingly.

Gauntlett, for SARS, argued that the Constitution explicitly provided that Chapter Nine institutions (of which the public protector is one) were subject to “the Constitution and the law”.

Instead of doing so, Mkhwebane, who “strongly disagreed” with Maenetje’s advice, sought a second opinion from advocate Muzi Sikhakhane. She did not, however, disclose this to the court.

Mabuse said that while the public protector had at first pleaded poverty, she managed to find funds to pay senior counsel for a second opinion. In so doing, said Mabuse, the public protector had acted mala fide.

Mkhwebane, in her submission to the Constitutional Court in support of her application, denied that she had deliberately failed to disclose Sikhakhane’s opinion prior to the High Court hearing.

“Unfortunately, she inadvertently omitted to send a copy of the Sikhakhane opinion to the first respondent due to her busy schedule…” advocate Dali Mpofu set out in the public protector’s submission.

Mpofu added that “nothing really turns on this since even after being apprised of and reading the Sikhakhane SC opinion, the first respondent [the public protector] persisted with the application, as it was entitled to do.”

Mpofu referred to an odd “prohibition” on Sikhakhane’s opinion, by the advocate himself, that it “may not be distributed to any person or entity without my (the author’s) prior consent”.

Mpofu seemed to be saying that apart from her busy schedule, this “prohibition” had also prevented her from revealing the opinion to the court.

While Mkhwebane had not sought this consent from Sikhakane, said Mpofu, the public protector had “never anticipated that such consent would have been withheld if requested”.

What Sikhakane suggested to the public protector was that the Constitution was superior to the Tax Act and that the Public Protector could ask for records and that SARS could “pass” the same conditions of confidentiality to the public protector.

Sikhakhane had, said Mpofu, “vindicated the interpretation preferred by the Public Protector”.

Any suggestion of mala fides on Mkhwebane’s part was “illogical” said Mpofu.

Gauntlett, for SARS, argued that the Constitution explicitly provided that Chapter Nine institutions (of which the public protector is one) were subject to “the Constitution and the law”.

“The Constitution and the law are quite clear. Taxpayer information is protected by law giving effect to the constitutional right to privacy,” said Gauntlett.

This right to privacy was “routinely protected in constitutional democracies by requiring either the waiver or permission by the right-bearer, or judicial permission, prior to infringing privacy”.

A defeat for Mkhwebane in this instance will only add to the already long list of court bruisings the public protector has endured in the country’s courts in relation to a series of high-profile matters, many of them directly related to the capture of the state under Zuma’s watch. DM