Public protector has 'no elevated status', ConCourt hears

The public protector is bound by the constitution and the law, and gets no elevated status from other Chapter 9 institutions.

This is one of the submissions made by Jeremy Gauntlett, counsel for Sars commissioner Edward Kieswetter, in a hearing before the Constitutional Court on Thursday on whether the public protector's powers extend to obtaining taxpayers' information.

Public protector Busisiwe Mkhwebane was before the court to apply for leave to appeal against a Pretoria high court judgment passed in March, which held that her subpoena powers do not extend to taxpayer information.

Mkhwebane had, in 2018, sought access to the records of former president Jacob Zuma.

This was 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 that has a bearing on the matter being investigated — applied to any person without exception.

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

He approached the high court to seek the declaration that the subpoena powers of the public protector did not extend to Sars.

The high court ruled in favour of Kieswetter, prompting Mkhwebane to approach the ConCourt.

Arguing before the court, Gauntlett said the commissioner of Sars was a creature of statute - the Tax Administrative Act specifically.

"He is told [to] treat this information as confidential for all these important reasons [and] only give it in these specified respects and degree to these bodies," said Gauntlett.

He said this assertion by the Sars commissioner was met with an answer by the public protector that she was at the apex of the Chapter 9 institutions.

"That is what is concerning about this case, is that we have argued ... with the proposition that - to use George Orwell's phrase - the public protector is 'more equal than all the others'," he said.

Gauntlett said the public protector was an important Chapter 9 institution. "In terms of constitutional standing, there is no ranking. There is no pre-eminence. She gets no special elevated status. She is under the constitution and she is under the law," he said.

He also questioned whether exceptional circumstances warranted the public protector going directly from the high court and ignoring - as other litigants ordinarily have - going to the full bench of the high court or the Supreme Court of Appeal before coming to the ConCourt.

"The mere fact that an issue is correctly characterised as important by the court of first instance does not answer a question whether exceptional circumstances are made for this court to be deprived of the assistance ... of the judgment, the wisdom, the input of the interceding court or courts," said Gauntlett.

He said there was no adequate answer given to this question by the public protector's counsel, Dali Mpofu, from members of the the court probing what were exceptional circumstances which justified a move Gauntlett described as not permissible.

Acting justice Margaret Victor asked Gauntlett what should happen if there was dissonance between two sets of national legislation, the Tax Administration Act and the Public Protector Act.

Gauntlett said there was no conflict because section 11 (3) of the Public Protector Act states that any person must show "just cause" why he or she could not comply with the request by the public protector.

"'Just cause' will be showing there is another statute," he said.

Arguing earlier, Mpofu said the primary pathway for the public protector to obtain taxpayer information was directly through Sars and not through other alternative pathways, including approaching the court or approaching the taxpayer.   

The court reserved judgment.

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