The public will never see Jacob Zuma’s tax records – Zuma Foundation

The public will not gain access to the tax records of former President and uMkhonto weSizwe (MK) leader Jacob Zuma, and any attempt to release them will be met with legal action by the former president.

This was the response of the Jacob Zuma Foundation to the Information Regulator of South Africa’s (IRSA’s) directive, instructing the South African Revenue Service (SARS) to release Jacob Zuma’s tax records. 

Last week, the IRSA held a media briefing to discuss its investigations relating to the Protection of Information Act and the Promotion of Access to Information Act (PAIA).

The regulator explained that it received a complaint against SARS last year relating to Zuma’s individual tax returns for the tax years between 2010 and 2018, while he was President of the Republic.

Following a recent investigation, the IRSA has now directed SARS to release Zuma’s tax records, following failed attempts to get the records released in the past.

The Jacob Zuma Foundation said that releasing Zuma’s tax records would be directly in breach of the Tax Administration Act (TAA), which prohibits SARS from disclosing any taxpayer’s confidential records. 

The release of these records can only be done “under narrow, specific statutory conditions. None of these conditions permit the release of President Zuma’s tax information,” the foundation said. 

The foundation added that PAIA cannot be used to force an illegality. “Even if the information regulator claims to rely on PAIA, PAIA does not authorise an administrator to compel SARS to violate the TAA.”

In May 2023, the Constitutional Court ruled that the blanket exclusion of tax records from the PAIA was unconstitutional.

This was after AmaBhungane and the Financial Mail argued that there was evidence to prove that Zuma did not file annual tax returns and that he received income from sources other than his government salary. 

The court said that there should be a public-interest override mechanism that allows for some information to be released.

Zuma to take legal action

The IRSA reiterated during the press briefing that the Constitutional Court made a decision about the constitutionality of the Income Tax Act.

“The principle that the Court is saying is that in South Africa, there’s no such thing as absolute prohibition. So there is no case where information cannot be disclosed,” the IRSA said.

The regulator acknowledged that certain conditions must be met, but the act is clear that if there is suspicion of the commission of a crime, information can be disclosed subject to certain protocols. 

The Foundation is firm in its stance that these conditions have not been met, saying that any attempt to override the TAA by disclosing the tax records would be unlawful, ultra vires and immediately reviewable. 

The TAA states that no tax official can disclose taxpayer information to anyone, including other taxpayers or the media, unless under strict conditions. 

These conditions are: when a judge orders SARS to hand over records in a criminal case and when a law-enforcement agency requires the documents for an investigation.

Other than that, records can only be shared with the Auditor General, the Tax Ombud or other countries’ revenue authorities.

“The foundation cautions SARS and all state institutions to resist being weaponised for political purposes,” the foundation said. 

It added that any unlawful attempt to force the disclosure of Zuma’s confidential tax records will be met with “appropriate and immediate legal action.”

In 2023, following the court ruling, SARS said it still could not release Zuma’s tax returns for the years he was in office, because the records would not reveal evidence of a substantial contravention or failure to comply with the law. 

This follows a battle between SARS and MK Paty MP and former Passenger Rail Agency of South Africa (PRASA) CEO, Lucky Montana.

SARS disclosed detailed taxpayer information about Montana, revealing that the MP owes them R55,133,282.94.

SARS said it acted under section 67(5) of the Tax Administration Act, which permits disclosure of taxpayer information to counteract “false statements that could undermine public confidence in the tax system.”

Montana said the allegations are part of a “political witch hunt” and that he does not owe SARS a cent.

Zuma must pay back the money