A few years ago, a woman with a very posh British-adjacent South African accent approached me at the opening of an art exhibition at the South African National Gallery in Cape Town, and started peppering me with questions about the Constitutional Court’s Nkandla judgment. When she realised that I was not keen to talk about Nkandla at the opening of an art exhibition, she changed tack. Why, she wanted to know, were so many of the constitutional law experts interviewed on radio and television white men? After a pause, she added with a hint of mockery, “…well, one particular white man”.
I blushed, not because I disagreed with her complaint – she was spot-on – but because I felt that I had been caught out in a kind of prejudice. I had wrongly assumed that she was a stereotypical white “liberal” – someone who might claim not to see race, or who might change their tone from slightly superior when speaking to a white person to full-on patronising when speaking to a black person – and I had done so based on her accent. When I confessed this to her, she laughed and said that the evening was looking up.
Hovering close to the bar (but not so close that we could be suspected of being alcoholics), and making full use of the unlimited free wine (surely the best part of exhibition openings), we chatted about the uninspiring and often vacuous nature of public discourse in South Africa, about the tendency of people to blindly support and defend individuals or factions, no matter what they may have done or said, about the mendacity of spin doctors, and about why ambivalence, uncertainty, and a willingness to keep an open mind got people into so much trouble on Twitter (which she had recently joined).
I was again reminded of this conversation when I saw how many people concluded (or pretended to conclude) that the Zuma tax judgment provided incontrovertible proof that the courts are biased against the Public Protector and against Jacob Zuma.
The judgment held that various provisions of the Tax Administration Act and the Promotion of Access to Information Act (PAIA) that prohibited the disclosure of confidential taxpayer information were unconstitutional because they infringed on the right of access to information protected by section 32 of the Bill of Rights. This was so, the court held, because the provisions did not include a narrow “public interest” exception that would allow for the disclosure of taxpayer information if such information revealed a substantial contravention of the law and the public interest in the disclosure of the record clearly outweighed the harm caused to the taxpayer or SA Revenue Service.
Critics contrasted this outcome with the outcome in two other cases. First, in Economic Freedom Fighters v Ramaphosa, the High Court dismissed a request by the EFF to unseal the bank statements of the CR17 campaign, which lavishly financed President Cyril Ramaphosa’s campaign for the leadership of the ANC. The EFF had argued that it was entitled to access to the CR17 bank statements in terms of the right to political activity protected in Section 19 of the Bill of Rights.
(The EFF did not rely on the right of access to information which was relied on in the Zuma tax judgment.) The court accepted the argument that Section 41 of the Financial Intelligence Centre (FIC) Act prevented the disclosure of the CR17 bank statements (which were obtained from the FIC) except in narrow circumstances, and concluded that there were no compelling reasons in this case not to honour the prohibition on disclosure in the FIC Act. Neither PAIA or the Tax Administration Act made an appearance in the judgment.
Second, in Public Protector v Commissioner the Constitutional Court dismissed a claim that the Public Protector was not bound by the prohibition on the disclosure of confidential taxpayer information contained in section 69(1) of the Tax Administration Act. The problem here was bad lawyering. As the Constitutional Court was never going to hold that the Public Protector is above the law, the Public Protector “should have brought a direct frontal challenge to the constitutionality” of Section 69(1) of the act for failing to provide for an exception that would allow the Public Proctor to access tax records in precisely defined circumstances. If the Public Protector had challenged the section as the litigants in the Zuma tax judgment did, the outcome may well have been different.
From the above it must be clear that the legal issues in the three cases were not the same, which provides a seemingly compelling explanation for the different outcomes. But if you believe that there is no right or wrong; that facts, rules and principles don’t matter unless they benefit your “side”; that the only thing that matters is whether “your” side is winning and the other “side” is losing; and if you assume everybody else (including judges) believes the same, it makes sense that you would think judges are biased when a judgment goes against your “side”.
Having said this, no judgment is beyond criticism. And the three judgments mentioned here are all open to critique, both for the gaps in the legal reasoning in each, and on more principled policy grounds. Sometimes reasonable people disagree about the reasoning or the outcome of a judgment, and sometimes reasonable people change their minds. Sadly, the “with-us-or-against-us” approach limits the possibility for such reasoned disagreement. As one might be persuaded by carefully constructed and well-reasoned criticism of a judgment – regardless of who “won” or “lost” the case – this approach seems counter-productive. Who has ever learnt anything or been persuaded by “you-are-either-with-us-or-against-us” rhetoric? Which is one of the reasons I often read the opinion pieces of Daily Maverick legal commentator “Prof Balthazar”.
In his most recent column, “Prof Balthazar” is highly critical of the judge who penned the Zuma tax judgment. I agree with some of the criticism, including that the judge messed up the Section 36 limitation clause analysis. Similar criticism could have been levelled against the judgment in the Economic Freedom Fighters v Ramaphosa matter, discussed above. But the column goes further, arguing that it was a dangerous mistake to provide a “public interest” exception to the general ban on the disclosure of confidential taxpayer records in cases where disclosure would reveal a substantial contravention of the law, and the public interest in the disclosure of the record clearly outweighed the harm caused to the taxpayer or SARS. In this regard, the column warns that the judgment could become:
“a pernicious weapon in the hands of the dark side of ‘journalism’. It could justify all manner of applications for taxpayer records. IOL and the Radical Economic Transformation faction will no doubt be very keen to exploit this judgment.”
I believe this argument is misguided, both in the conclusion it reaches and in the justification given. Let me explain why.
I start from the premise that transparency is a vitally important value worth promoting and protecting in a democracy. Transparency is at least partly promoted by the expansive protection of the right of access to information. The protection of this right promotes accountability in both the public and the private sphere (where the bulk of tax shenanigans surely occur). When the law is used to limit the ability of the media, civil society organisations and private citizens to access certain types of information, it limits their ability to hold those who wield political, social and economic power to account, and to expose wrongdoing and corruption. It helps to tilt the power in favour of elites.
While the need to protect the right to privacy will require the imposition of some limitations on the right of access to information, it is important to strike the appropriate balance between these competing rights. The privileged often use privacy rights arguments to shield themselves from scrutiny and to evade accountability. For all these reasons I am inherently sceptical when elites argue that secrecy of one kind or another is required to protect privacy rights or to achieve some other important purpose (such as enhancing tax compliance).
Moving from the broad principles to the specific issue, I accept that the argument advanced by SARS that the protection of taxpayer confidentiality enhances tax compliance is a valid one. But, perhaps because I am a human rights lawyer, I do not believe that enhanced taxpayer compliance justifies an absolute prohibition on the disclosure of taxpayer information. This is because such a prohibition strikes the wrong balance by imposing a radical limitation on the right of access to information. This is not reasonably justifiable, unless you value tax compliance above anything else.
At the very least, what is required is to provide the kind of narrow exemption to the protection of taxpayer confidentiality adopted by the high court. This exemption would only permit the disclosure of confidential taxpayer information in the most exceptional circumstances, as it would only allow disclosure if the tax records would reveal a substantial contravention of the law and the public interest in the disclosure of the record clearly outweighed the harm caused to the taxpayer or SARS. The public interest requirement would protect the confidentiality of the overwhelming number of those taxpayers who contravened the law. While the rule might expose a small number of people who wield enormous power in government or business, it would seldom be in the public interest to disclose the confidential taxpayer information of ordinary private citizens.
The claim that the exemption could be abused by unscrupulous people is therefore dubious at best. The argument that the exemption is dangerous because it might be used by the “RET faction” (presumably against President Ramaphosa and his faction) is also unprincipled. When you claim a rule is bad because it might hurt the “side” that you support and might benefit the “side” that you dislike, you might have crossed over to the dark side where Zuma’s most fanatic supporters reside.
I can’t imagine why it would ever be considered a good thing to protect an individual taxpayer from scrutiny, when that taxpayer is involved in a substantial contravention of the law, merely because that individual happens to be an opponent of the “RET faction”. Why would it ever matter which side of a political fight the person being exposed by transparency laws is on? In any event, even if one assumes that this is a problem (which I do not accept), individual taxpayers in the non-RET factions can easily avoid this from happening by ensuring that they do not get involved in a substantial contravention of the law.
In a truly transparent society, the only sure way to stay out of serious trouble would be not to abuse your power or to break the law – perhaps not an idea that economic, political, and social elites are likely to embrace. DM