A rare glimpse of accountability shines through as the Information Regulator mandates SARS to release Jacob Zuma's tax records, dismantling the agency's 'soft approach' to Zuma's tax non-compliance. Seven years after amaBhungane's initial Paia request, we may finally uncover how Zuma evaded his tax obligations, seemingly with SARS' tacit approval. Despite the slow wheels of accountability, the Information Regulator exemplifies the benefits of robust mechanisms that prevent state enterprises from evading their constitutional and legal duties.
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 these records would demonstrate Zuma's failure to declare all his income to the South African Revenue Service (SARS), and our suspicions were confirmed when SARS treated Zuma with leniency.
This week, our suspicions were validated. On Wednesday, Advocate Pansy Tlakula, the chairperson of the Information Regulator, issued an enforcement notice compelling SARS to disclose all the requested information. The notice and its reasoning strongly support our arguments made over the past seven years, and serve as a sharp rebuke to SARS' handling of Zuma's persistent failure to meet his tax obligations.
After SARS initially refused our Paia applications, we took the matter 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 the disclosure of taxpayer information if the public interest demanded it. Paia acknowledges categories of information that cannot be disclosed, including taxpayer information, but also creates a 'public interest override', stipulating that public bodies must disclose information in these categories if it would reveal substantial contravention of or failure to comply with the law, and if the public interest clearly outweighs the harm caused by the disclosure.
Following our court victory, we re-filed two new requests for information—Zuma's tax returns and various documents related to his tax affairs. In December 2023, SARS again refused our requests, claiming the documents did not disclose evidence of a contravention of or failure to comply with the law. This led us to the Information Regulator, the new regulatory body established to ensure compliance with Paia and the Protection of Personal Information Act (Popia).
The regulator's findings this week reiterate that the public interest override aims to balance privacy and access rights, ensuring that important information is disclosed to the public when transparency and accountability justify it. When determining whether the public interest override applies, two questions must be asked: 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 its response to the first question, finding that Zuma filed his tax returns late every year of his presidency, under-declared his taxes in 2017 and 2018, received penalties for this, was criminally charged with making false statements in his returns, and failed to show gross income or material facts in his returns. Importantly, the regulator also identified that the information's disclosure may reveal evidence of misconduct by SARS.
The documents may show how SARS' 'soft approach' to Zuma meant it failed to perform its constitutional obligations diligently and without delay, and failed to hold 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 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 was debate about whether the documents would reveal a 'substantial' contravention of the law, as required by Paia. The regulator was again unequivocal, stating that the contraventions 'can only be substantial' because Zuma broke the law 'on numerous occasions', each constituting an offence with a prison sentence, and that 'failure by the president of South Africa to comply with the law is substantial'.
The regulator also had strong 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 tax obligations. 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'. Additionally, 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 on a person's privacy but found that the information we sought was solely 'commercial information', 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 underscore 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 emphasized 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.
