A triumph for South Africa's press freedom: My part in landmark court ruling over Jacob Zuma tax affairs
Do you think it is in the public interest to see the tax returns of Jacob Zuma, the disgraced former president of South Africa?
I did. So along with my former employer Financial Mail, the amaBhungane Centre for Investigative Journalism, and an outstanding legal team, we spent more than three years fighting the South African Revenue Service through the courts to get them. And last week, we achieved a major breakthrough.
In an era of growing media suppression around the world, our victory is a rare triumph for press freedom.
It is also a reflection of the South African courts’ determination to ensure our post-apartheid nation maintains a culture of transparency and accountability: a principle that is embedded in the constitution many South Africans died for.
Under Jacob Zuma’s regime, South Africa was heading to the abyss.
According to the findings of the State Capture Commission, a shadow state was constructed which served to enrich Zuma’s benefactors – the Gupta family being the most prominent.
The Guptas even appointed public officials, including government ministers. Government departments and state-owned entities awarded lucrative contracts and tenders to Zuma’s closed circle.
This was “State Capture”. During his time in office between 2009 and 2018, an estimated $84 billion was reportedly looted in this way.
For years journalists doggedly probed allegations of Zuma’s grand corruption. The judiciary played its part. Rulings repeatedly made by the courts demonstrated Zuma had abused his position even while he held power. Both Zuma and the Guptas have always denied the allegations.
My realisation that it may be a good idea to try to access Zuma’s tax returns was triggered by detailed and credible allegations levelled at the president by investigative journalist Jacques Pauw in late 2017.
In his book The President’s Keepers, Pauw claimed that Zuma had not filed any tax returns for at least the first seven years he was president.
The book suggested Zuma had received “donations” from tobacco smugglers, Russian oligarchs, and the Gupta family which he had not declared nor paid tax on.
Zuma, it was claimed, had even drawn a large salary as an employee of a local security company in the first months of his presidency.
In response to the book, Zuma publicly denied the claims and maintained his tax affairs were in order. But he did not sue Pauw or the publishers.
In February 2019, a year after Zuma had resigned as president in the wake of the Gupta Leaks exposé, I made a request to SARS to access the former president’s tax details under the Promotion of Access to Information Act (PAIA - South Africa’s version of the Freedom of Information Act).
It meant SARS were obliged to ask the former president for his thoughts on the matter. Zuma did not respond. But the records were not released owing to the secrecy provisions of the country’s tax laws.
Zuma did not oppose the High Court application we brought in 2020 to challenge the shortcomings of PAIA and the Tax Administration Act under which SARS argued taxpayer confidentiality is sacrosanct to ensure compliance.
It was only when the matter was to be argued in the Constitutional Court that Zuma moved to oppose us.
But last week South Africa’s Constitutional Court agreed with our arguments that there should be a responsible “public interest override” embedded in law that allows for the careful and qualified release of tax records when it can be demonstrated that it is manifestly in the public interest.
The Court has given parliament two years to remedy the problematic areas of both the Tax Administration Act and the Promotion of Access to Information Act.
Until the new legislation becomes law, the court inserted a public interest clause. This enables the release of records where there is evidence of a substantial contravention of, or failure to comply with the law, or an imminent and serious public safety or environmental risk.
The court also gave us one month to supplement our request to release the tax returns of former President Jacob Zuma for the years he was in office (2010 – 2018), which SARS must consider afresh.
We await Zuma’s tax filings eagerly. It will be fascinating to see what the former president disclosed to SARS during those years and whether he was tax compliant. The details are vital so that we hold power to account.
In the preamble to our Promotion of Access to Information Act, it states: “The system of government in South Africa before 27 April 1994, amongst others, resulted in a secretive and unresponsive culture in public and private bodies which often led to an abuse of power and human rights violations.”
We are glad this ruling shows that in South Africa times have changed in some ways for the better.