Mpofu challenges Sars bid for personal costs order against Mkhwebane

Public protector Busisiwe Mkhwebane's legal representative Dali Mpofu has told the court it was becoming fashionable that litigants against her ask the court to impose punitive cost orders.
Public protector Busisiwe Mkhwebane's legal representative Dali Mpofu has told the court it was becoming fashionable that litigants against her ask the court to impose punitive cost orders.
Image: Alon Skuy/THE TIMES

It's become fashionable to the point of annoyance for those engaged in a legal fight with public protector Busisiwe Mkhwebane to ask for punitive costs orders against her personally.

This submission was made in the Pretoria high court on Friday by counsel for the public protector, Dali Mpofu SC, during an application by the SA Revenue Service (Sars).

Sars is seeking an order declaring that the public protector’s subpoena powers do not extend to taxpayers' records.

The public protector is opposing the application.

Mpofu said a request by Sars, that Mkhwebane pay for a percentage of the costs order should she lose, came in a case where Sars and Mkhwebane were in agreement that the issue in dispute was an important constitutional one that the court should resolve.

Mpofu asked why in a case like this, would one party ask for a punitive costs order.

“[The court] must assume that the public protector, in pursuit of her anti-corruption activities, is in pursuit of that information.

"[The court] must assume that [Sars commissioner] Mr [Edward] Kieswetter got the wrong advice that the Tax Administration Act trumps the constitution,” Mpofu said.

Mpofu said if other organisations could receive taxpayer information from Sars — such as the statistician general and the national credit regulator — the court should ask on what basis should this assistance not be extended to the public protector.

However, counsel for Sars Jeremy Gauntlett SC insisted on a punitive costs order.

Gauntlett listed eight reasons why the court should order Mkhwebane to pay 15% of the costs should she lose.

Among them, Gauntlett said, the Constitutional Court had mentioned in another judgment in the Absa/Bankorp lifeboat matter that the personal costs order was an appropriate sanction for public officials who fell egregiously short of what was required of them as public officials.

In its argument, Sars said it was bound by law to preserve the secrecy of taxpayers' information and legislation prevented it being shared with the public protector.

Sars sought the order after a request by the public protector in 2018 for former president Jacob Zuma's tax records.

Mkhwebane sought them as part of her investigation into claims that Zuma received monthly payments of R1m from the Royal Security company, headed by politically connected businessman Roy Moodley, in the first few months of his term in 2009.

The court reserved judgment.


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