The primary pathway for the public protector to obtain information from the SA Revenue Service is directly from Sars and not through secondary, alternative means.

This is one of the arguments proffered by public protector Busisiwe Mkhwebane's counsel, Dali Mpofu SC, on Thursday, in her application for leave to appeal before the Constitutional Court.

The public protector seeks to appeal against an order of the Pretoria high court passed in March this year, which held that her subpoena powers do not extend to taxpayer information.

The matter began in 2018 after Mkhwebane sought access to former president Jacob Zuma's tax records.

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

Mkhwebane believed that section 7(4) of the Public Protector Act — which states that the public protector may direct any person to produce any document under his or her control which has a bearing on the matter being investigated — applied to any person without exception.

Sars commissioner Edward Kieswetter refused to give her information, saying the Tax Administration Act prohibited Sars from releasing the information to the public protector.

He said there were other means by which the public protector could obtain the information, including from the taxpayer or by obtaining a court order.

When the public protector and Kieswetter could not reach a solution, he approached the high court in Pretoria seeking an order declaring that taxpayer information was confidential.

Addressing the Constitutional Court on Thursday, Mpofu said there was clearly a hierarchy of pathways in obtaining information sought by the public protector.

“The question is, which is the primary pathway for us? Is it getting it directly by using section 7(4)? If the answer is yes, then that is the end of it,” Mpofu said.

Mpofu said if the answer was no, then the public protector could consider the next route, which is applying to the court to obtain taxpayer information.

If the court refuses to grant the information, the third pathway is to get the consent of the taxpayer.

“You cannot go to pathway three when pathway one is available,” Mpofu said.

Mpofu said if the subpoena route contained in section 7(4) was available, why would the public protector waste money and clog the court system for something that is available to her through legislation.

Justice Leona Theron put it to him that the Tax Administration Act provided exceptions whereby certain entities could be provided with tax information and the public protector was not one of those.

“If this court was to accept the public protector's interpretation ... that would require us to broaden the scope of section 7(4) so that the public protector becomes one of those entities that are exempted,” Theron said.

She said this would mean that the court would be reading in an additional entity not mentioned by the legislature.

“Is that the function of this court or is it parliament's function,” Theron asked.

Mpofu responded: “We are not asking you to read in the public protector in the legislation literally.”

He asked the court to interpret the act to include the public protector as one of the entities which must be entitled to obtain information from Sars.

Mpofu said in the heads of argument for Kieswetter, his advocates stated that the public protector had at least two available statutory alternatives.

“There is the rub, the word alternative. They concede themselves those are alternative routes. Those are not the primary routes. If we are correct that the primary route is available, [why should] we bother with alternative routes?” Mpofu said.

The hearing continues.

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