Public Protector v Commissioner for the South African Revenue Service and Others

Following allegations in a published book that former President Jacob Zuma had received post‑presidency income from Royal Security CC without paying tax, Mmusi Maimane lodged a complaint with the Public Protector requesting an investigation. During the investigation, the Public Protector subpoenaed the Commissioner for the South African Revenue Service (SARS) to produce Zuma’s confidential taxpayer information. SARS refused, relying on the secrecy provisions of section 69(1) of the Tax Administration Act. After conflicting senior counsel opinions, the Commissioner approached the High Court for a declarator that SARS officials were entitled to withhold taxpayer information and that the Public Protector’s subpoena powers did not extend to such information. The High Court granted the declarator, dismissed the Public Protector’s conditional counter‑application for disclosure, and ordered the Public Protector to pay 15% of SARS’s costs de bonis propriis. The Public Protector sought leave to appeal directly to the Constitutional Court.

Leave to appeal against the High Court’s declarator and dismissal of the counter‑application was refused. Leave to appeal against the de bonis propriis costs order was granted, the appeal on costs was upheld, and the High Court’s personal costs order against the Public Protector was set aside. Each party was ordered to pay its own costs in the Constitutional Court.

The case clarifies that the Public Protector’s subpoena powers do not automatically override statutory confidentiality regimes, particularly taxpayer secrecy under the Tax Administration Act, absent a successful constitutional challenge. It reinforces the principle that statutory provisions remain operative until declared invalid by a court. The judgment is also significant for its guidance on personal costs orders against the Public Protector, emphasising the need to protect the independence and effective functioning of Chapter 9 institutions.