Rare glimpse of accountability as Information Regulator orders SARS to release Zuma’s tax records

In February 2019, amaBhungane and Warren Thompson, then a journalist at Financial Mail, filed requests under the Promotion of Access to Information Act (Paia) for access to former president Jacob Zuma’s tax records. 

We believed that the records would demonstrate that Zuma had not declared all his income to the South African Revenue Service (SARS), and we had a suspicion that SARS was treating Zuma with kid gloves.

This week, we have been vindicated. On Wednesday, Advocate Pansy Tlakula, the chairperson of the Information Regulator, issued an enforcement notice compelling SARS to disclose all the information we requested. 

The notice and its reasoning is a ringing endorsement of everything we have argued over the past nearly seven years. It is also a stinging rebuke to the manner in which SARS handled Zuma’s continued failure to abide by his tax obligations.

After SARS refused those first Paia applications, we took the fight all the way to the Constitutional Court. In May 2023, the court ruled that the tax legislation and Paia were unconstitutional to the extent that they did not provide for disclosure of taxpayer information if the public interest demanded it.

Paia recognises categories of information that cannot be disclosed, including taxpayer information. However, it also creates a “public interest override” and stipulates that a public body must nevertheless disclose information falling into these categories if it would reveal evidence of a substantial contravention of or failure to comply with the law and the public interest if the disclosure clearly outweighs the harm caused by the disclosure. 

Following the court victory, we went back to SARS and filed two new requests for information — for Zuma’s tax returns and for various other documents related to his tax affairs. In December 2023, SARS again refused our requests, stating that the documents we requested did not disclose evidence of a contravention of or failure to comply with the law.

And so we ended up at the Information Regulator, the new regulatory body established to ensure compliance with Paia and the Protection of Personal Information Act (Popia). 

Read more: AmaBhungane and Open Secrets challenge PetroSA’s diesel contracts secrecy

Read more: Deals done in secret, the PetroSA way, are bad business

In this week’s findings, the regulator reiterated that the purpose of the public interest override is to balance the rights to privacy and to access, and that it “ensures that important information is disclosed to the public when transparency and accountability justify disclosure above the competing interests”. 

When determining whether the public interest override applies there are two questions to ask: Would disclosure reveal evidence of a substantial contravention of, or failure to comply with, the law, and whether the public interest in disclosure outweighs the potential harm of disclosure? 

A contravention of the law

The regulator was unequivocal in answering the first question in the affirmative. It found that Zuma filed his tax returns late every year of his presidency (and then only after a final demand was issued), he under-declared his taxes in 2017 and 2018 (and received penalties for this), he was criminally charged with making false statements in his returns, and he failed to show gross income or material facts in his returns.

Importantly, the regulator also identified that the information’s disclosure may not only reveal evidence of Zuma’s contravention of the law, it “may well” also reveal evidence of misconduct by SARS.

The documents may show how SARS’ “soft approach” to Zuma meant that it failed to perform its constitutional obligations “diligently and without delay”, and had failed “to hold Mr Zuma to the prompt fulfilment of his tax obligations”. 

The regulator concluded that SARS’ “apparent failure” to enforce tax legislation in respect of Zuma “constitutes a failure by SARS to comply with the law”, and said that “both legitimate and serious questions can be raised in relation to the manner in which SARS handled Mr Zuma’s tax affairs and repeated transgressions”.

During the Information Regulator process, there had been debate about whether the documents would reveal there had been a “substantial” contravention of the law, as required by Paia.

Again, the regulator was unequivocal. It wrote that the contraventions “can only be substantial” because Zuma broke the law “on numerous occasions”, each of which constituted an offence with a prison sentence, and that “failure by the president of South Africa to comply with the law is substantial”.

Here again, the regulator had choice words for SARS’ conduct: “The seriousness of the violation of the law does not depend on the extent to which the guardians of the law choose to enforce it.”

A public interest in transparency

In determining whether the public interest in the disclosure of Zuma’s tax records outweighed the harm to Zuma himself or SARS and its ability to collect tax revenue, the regulator highlighted the importance of transparency in our public bodies.

It confirmed that the public has an interest in knowing whether SARS is exercising its powers fairly and consistently, and whether the president is complying with his own tax obligations. It stressed that this is “crucial for maintaining trust in public institutions and the rule of law”.

Beyond the public interest in these specific documents, the regulator stressed that “there is a genuine public interest in promoting transparency, accountability, public understanding and involvement in the democratic process”.

In addition, transparency into whether the president complied with tax laws and whether SARS acted appropriately “can act as a deterrent for other public officials or individuals who might consider evading tax or failing to meet their financial obligations”. 

The regulator accepted that the disclosure of records can infringe a person’s privacy, but found that the information we sought was solely “commercial information” and so any incursion into Zuma’s privacy by disclosure was only a narrow one. 

This is a strong endorsement of transparency from the body also tasked with ensuring compliance with Popia. 

Need for accountability

The Regulator’s findings demonstrate the importance of strong and rigorous accountability mechanisms in South Africa. 

In addition to enforcing compliance with Paia, the regulator has refused to allow SARS to evade responsibility and to weasel out of the obligations imposed on it by the Constitution and the law. 

It has emphasised that the president of the country is not above the law, and that the public has a particular interest in knowing whether he or she is complying with the law. 

As our state institutions continue to weaken and impunity rises, the ability of the Information Regulator to hold our public bodies to account must be protected. DM