An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Last Friday the South African Revenue Service (SARS) threatened to pursue criminal charges against Jacques Pauw about revelations made in his new book, The President’s Keepers: Those keeping Zuma in power and out of prison. Shortly afterwards, the State Security Agency (SSA) demanded that the publishers withdraw the book, and threatened to obtain an interdict against the publishers to force the books withdrawal and to pursue criminal charges against Pauw. SARS and the SSA could not have drawn more attention to the content of the book if they had gotten television personality, radio host and businesswoman Bonang Matheba and Springbok rugby captain Eben Etzebeth to pose naked with copies of the book covering their naughty bits. By threatening Pauw with criminal prosecution, SARS and the SSA also, in effect, confirmed that claims contained in the book are true.
As I began reading The President’s Keepers last Sunday, I wondered which former or current SSA members and SARS employees spilled the beans to author Jacques Pauw and whether the SSA and SARS would be stupid enough to confirm the veracity of their accounts by threatening Pauw with criminal prosecution for leaking information from the SSA and SARS.
The book alleges (after SARS and the SSA threatened Pauw with prosecution for publishing the information, one is tempted to write “reveals”) that President Jacob Zuma had not filed tax returns for the first several years that he served as President of the country, that (if honestly calculated) he would owe SARS about R60 million in taxes, and that he had illegally and in breach of the Constitution received R1 million per month from a dodgy security company for several months after he became President. It also alleges/reveals that President Zuma had appointed Arthur Fraser as head of the SSA despite the fact that Fraser had been implicated in serious corruption and the looting of billions of Rand from the SSA.
Of course, Pauw admits that he spoke to former SSA agent, Paul Engelke, in Russia and the SSA mentions Engelke specifically in its “cease and desist” letter sent to the publisher on Friday. But does the Intelligence Services Act and the Tax Administration Act prohibit the leaking and publication of information of (alleged?) corrupt activities and abuse of power within the SSA and SARS? And if it does, would this ever be viewed as a justifiable and constitutionally compliant limitation on the right to freedom of expression?
Let us first look at the Intelligence Services Act. Section 26(1)(a)(iii) of the Act does prohibit a journalist like Pauw from disclosing classified information provided to him by a member of the SSA (unless permission is granted). It does not prohibit Pauw from publishing classified information about the SSA provided to him by a former member like Engelke. So, if Pauw’s source is Engelke, Pauw did not breach section 26(1)(a)(iii) of the Act.
Section 26(1)(f)(i) of the Act prohibits a former member (but not a journalist like Pauw) from disclosing classified information to anyone else (unless permission is granted). Once again, the section could not be used to go after Pauw as he is not a former member of the SSA. Furthermore, section 27(1) of the Act prohibits a former member (but not a journalist like Pauw) from disclosing certain information about his work at the SSA to anyone else.
This means that those who spoke to Pauw (but not Pasuw himself) could arguably be prosecuted – but only if the sections under which they could be prosecuted are not found to be unconstitutional (I point out below that these sections almost certainly are unconstitutional). However, nothing in the Intelligence Service Act prohibits Pauw from publishing the revelations about the corruption in the SSA, which means that the letter the SSA sent to Pauw and his publisher appears to have been drafted by a lawyer or somebody else with a tenuous knowledge of the law, or that it was sent knowing that it contains empty threats.
In any event, the sections in the Intelligence Services Act (referred to above) which prohibit disclosure of information about the SSA – even when that information might reveal flagrant corruption within the SSA, abuse of power and worse – would clearly be unconstitutional. The sections limit the right to freedom of expression guaranteed in section 16(1) of the Constitution.
A court will hardly find that such limitations are justifiable in terms of the limitation clause. This is because these provisions as they now stand could be used to hide criminal activity, abuse of power and even high treason.
Instead a court will find that the sections are overbroad. In the words of section 36, a court will almost certainly find that “less restrictive means” could have been used to achieve the purpose of protecting the security of the state. The purpose of these sections could never have been to hide corruption, abuse of power or high treason.
What was required to render these provisions constitutionally compliant would be a carefully crafted public interest exception to allow for disclosure when that disclosure reveals alleged criminal activity/corruption, abuse of power and the subversion of the constitutional democracy. The failure of these sections to provide for such a public interest exception that would allow for disclosure in limited renders them unconstitutional.
The situation with the Tax Administration Act is more complicated. This Act prohibits anyone from publishing SARS confidential information – defined extensively in section 68(1) of the Act. Such information includes any information about the tax affairs of any taxpayer as well as any internal deliberations about such tax affairs by SARS officials or actions taken by SARS against a tax offender. Section 67(3) specifically states that:
In the event of the disclosure of SARS confidential information or taxpayer information contrary to this Chapter, the person to whom it was so disclosed may not in any manner disclose, publish or make it known to any other person who is not a SARS official.
This means that unless permission was given to publish information about President Zuma’s (alleged?) failure to pay taxes (or, of course, unless the claims in the book about Zuma’s tax affairs are false and not based in any way on revelations made by a SARS official) Pauw and his publisher may well have acted in contravention of the Tax Administration Act. But for the same reasons as noted in the discussion of the unconstitutionality of the Intelligence Services Act above a court is likely to declare the sections of the Tax Administration Act unconstitutional and invalid, in which case no successful prosecution would be possible.
It is important to note that section 68(3)(b) of the Act does allow for taxpayer information to be published if Tom Moyane (the Commissioner of SARS) gives permission for such a disclosure. Section 69(2)(c) also allows for the disclosure of taxpayer information by order of a High Court. Section 70(2)(c) of the Act also allows a senior SARS official to disclose taxpayer information to a commission of inquiry established by the President of the Republic of South Africa under a law of the Republic, the information to which the Commission is authorised by law to have access.
If SARS Commissioner Tom Moyane were to act in the public interest and not as one of “Zuma’s Keepers”, he would, of course, immediately release all President Zuma’s tax information of the past 15 years, relying on section 68(3)(b) of the Act to do so. If he fails to do this (which he certainly will), it might also be possible to get a court order to have President Zuma’s tax information made public in terms of section 69(2)(c) – as such disclosure is manifestly in the public interest and Moyane’s refusal to allow it would almost certainly be irrational and unlawful.
The recent Supreme Court of Appeal (SCA) judgment in Maharaj and Others v Mandag Centre of Investigative Journalism NPC and Others provides strong support for this argument. It confirms that a failure by Moyane to grant permission to reveal information about President Zuma’s tax affairs would almost certainly be irrational and unlawful.
In that case the National Director of Public Prosecutions (NDPP) refused to grant permission for the Mail & Guardian to disclose evidence of corruption by then presidential spokesperson Mac Maharaj gathered in camera by the NPA during a special procedure. The NPA Act allowed the NDPP to give permission to reveal the information – just like the Tax Administration Act allows the SARS Commissioner to give permission for the disclosure of SARS confidential information.
The SCA noted that the provision in the NPA Act prohibiting disclosure without permission placed a limitation on the right to freedom of the “media as also the correlative right of the public to receive and impart information”, which is protected by section 16(1) of the Constitution. It is for this reason that the utmost care must be taken to ensure that the appropriate balance is struck in each case between securing the integrity of the criminal justice system and upholding freedom of expression.
The SCA held that the NDPP should not have refused permission to publish the information and the refusal was irrational and invalid. The administration and integrity of the criminal justice system would itself require publication as publication would “first, reveal to this country’s citizenry what was said by a senior public office bearer in response to allegations of unlawful conduct involving public funds; and, second, whether what was said by him can withstand scrutiny in the light of other information that has since come to light”. The SCA then continued:
There can be no gainsaying that if what the M&G says is true [about Maharaj being corrupt], they raise matters of profound public importance…. The objective of policing State officials to guard against corruption and malfeasance in public office forms part of the constitutional imperative to combat crime. The NDPP is an important bulwark in that regard. The NDPP is there to inspire confidence that all is well and, if there is corruption and malfeasance in high public office, that it is being effectively dealt with. The public needs to be assured that there is no impropriety in public life and that if there is, then it should be exposed. In that sense, the media plays a vital watchdog role.
The same logic must surely apply to SARS and to allegations that President Zuma had for many years after taking office failed to submit tax returns, that he unlawfully received R1 million a month from a dodgy security company while he was already serving as President and that SARS under Moyane had given the President preferential treatment and was failing to collect almost R60 million in taxes owed to SARS by President Zuma.
In any event, it is highly unlikely that anyone will ever be prosecuted in terms of either these Acts as such a prosecution would require the proof that the book contains genuine information leaked from SARS and the SSA – thus confirming the veracity of the allegations in the book. This would be catastrophic for President Jacob Zuma as it would confirm that he is guilty of serious wrong-doing and abuse of power.
As they say in the movies: “Ain’t gonna happen.”BACK TO TOP