In Arena Holdings (Pty) Ltd t/a Financial Mail v South African Revenue Services (SARS), the court granted the Financial Mail an interim order to compel SARS to disclose certain tax records. The court held that certain sections of the Promotion of Access to Information Act (PAIA) and the Tax Administration Act (TAA) were unconstitutional. Under the TAA, the revenue authority could only disclose taxpayer records to an official at SARS. The judgment is a triumph for the media who can now access taxpayer records. The High Court referred the matter to the Constitutional Court to confirm the orders of constitutional invalidity.

The constitutional court confirmed the order of the High Court declaring sections of PAIA invalid and have allowed Parliament 24 months to address the invalidity.

Who should care about this judgment and why?

  • The media because it has a massive impact on the legal framework governing access to taxpayers’ information in the public interest.
  • All taxpayers because your tax records may be disclosed under exceptional circumstances.
  • SARS because they would have to update their policies in line with the court ruling.

What could you do about it?

  1. Comply with access to information laws by joining a programme.
  2. Dive into the detail by reading the full judgment.
  3. Access other relevant judgments by joining a Michalsons programme.

Our insights on the judgment

There is a general understanding that all tax records are private. Laws like the TAA guarantee confidentiality of all taxpayer records. However, there are exceptions to this general rule where there is a strong public interest in disclosing someone’s tax records. The court managed to balance the right of access to information in the public interest against a person’s right to privacy. The judgment sends a stark message to taxpayers in general. Although SARS handles your tax records with the highest levels of confidentiality, in exceptional circumstances, a court can order SARS to disclose your records in high profile matters.

Taxpayer confidence in SARS

We know from the application papers that Zuma did not oppose the application. Zuma did not attempt to prove that he complied with tax laws. While the country awaits the details of Zuma’s tax records, we think that it would be concerning if his tax records reveal that he was not tax compliant. The details of Zuma’s tax records, good or bad, would impact on the public’s confidence in SARS.

Digest

The Financial Mail wanted access to former president, Jacob Zuma’s tax records. The Financial Mail claimed that Zuma did not comply with tax legislation during his presidency according to evidence in the public domain. The paper argued that:

  • they had access to information rights in terms of the Constitution and PAIA.
  • the media has an obligation to impart information which is in the public interest (section 16 of the Constitution)
  • the media should not be limited by a blanket ban on disclosing taxpayer information (section 14 of the Constitution).

The court held that:

  • the limitations (mentioned above) were not justified in terms of section 36 of the Constitution.
  • one should read the “public interest override” provision (section 46 of PAIA) into section 35 of PAIA and section 69 of the TAA.

The court issued appropriate declarations of constitutional invalidity and referred the matter to the Constitutional Court.

Order

  • The High Court referred the matter to the Constitutional Court to confirm the orders of constitutional invalidity.

Details of

  • Universal citation: [2021] ZAGPPHC 779
  • Case number: 88359/2019
  • Full name: Arena Holdings (Pty) Ltd t/a Financial Mail and Others v South African Revenue Services and Others

Please note: The summary of this judgment is not intended for a general audience. It is specifically drafted for the members of the Michalsons Access to Information programme.