THE CONSTITUTIONAL COURT OF SOUTH AFRICA
Case 365/21 In the matter between:
ARENA HOLDINGS (PTY) LTD First Applicant THE AMABHUNGANE CENTRE NPC Second Applicant
WARREN THOMPSON Third Applicant
and
SOUTH AFRICAN REVENUE SERVICE First Respondent JACOB GEDLEYIHLEKISA ZUMA Second Respondent
MINISTER OF JUSTICE Third Respondent
MINISTER OF FINANCE Fourth Respondent
INFORMATION REGULATOR Fifth Respondent
SARS’ PRACTICE NOTE
NATURE OF PROCEEDINGS
1 This is an application for confirmation of a declaration of constitutional invalidity of certain sections of the Promotion of Access to Information Act 2 of 2000 (“PAIA”) and the Tax Administration Act 28 of 2011 (“TAA”). The Gauteng Division (per Davis J) declared sections 35 and 46 of PAIA and sections 67 and 69 of the TAA unconstitutional and invalid, to the extent that they deny access to tax information in circumstances where the requirements for the “public interest override” in section 46 of PAIA are met.
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2 SARS has further sought leave to appeal directly against certain orders of the Court a quo. In particular, SARS seeks leave against the setting aside of the decision to refuse the disclosure of Mr Zuma’s tax information, and the order by the Court a quo that Mr Zuma’s tax information should be disclosed within ten days of its order.
ISSUES TO BE ARGUED
3 The ultimate question is whether the legislative choices in the TAA and PAIA were available to a parliament of a democratic society based on human dignity, equality and freedom.
4 The second issue, which arises only if the declarations of constitutional invalidity are confirmed, is what the just and equitable remedy should be.
RELEVANT PORTIONS OF THE RECORD
5 The Court is respectfully requested to read the following High Court affidavits:
5.1 the founding affidavit (vol 1, p 6)
5.2 Mr Kieswetter’s answering affidavit (vol 6, p 491)
5.3 Mr Tomasek’s supporting affidavit (vol 6, p 540)
5.4 The replying affidavit (vol 8. p 714).
6 The Court is respectfully requested to read the following affidavits filed in this Court:
6.1 Mr Kieswetter’s founding affidavit in the direct appeal (vol 9, p. 863)
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6.2 Mr Milo’s supporting affidavit (vol 9 p 851).
6.3 Mr Milo’s answering affidavit to Mr Kieswetter’s founding affidavit (vol 9, p 907).
7 Finally, it is necessary to read the judgment of the Court a quo (record: vol 9, p.
816).
ESTIMATED DURATION
8 One day.
SUMMARY OF THE ARGUMENT
9 SARS contends that parliament has in PAIA and the TAA struck a sensitive and fair balance balance between the rights of privacy, access to information and freedom of expression. The balance is one that has been adopted in other jurisdictions and is consistent with South Africa’s international obligations.
10 If the order of constitutional invalidity is confirmed, there is no warrant, on the facts of this case, for the reading-in relief sought.
AUTHORITIES ON WHICH PARTICULAR RELIANCE WILL BE PLACED
11 Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC)
12 Estate Dempers v Secretary for Inland Revenue 1977 (3) SA 410 (A) 420
13 Glenister v President of the RSA 2011 (3) SA 347 (CC)
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14 Marcel v Commissioner of Police of the Metropolis [1991] 1 All ER 845 (Ch) 851
15 Njoya v Attorney General [2014] eKLR
16 S v Makwanyane and Another 1995 (6) BCLR 665
Wim Trengove SC
Lwandile Sisilana
First respondent’s counsel Chambers, Sandton 20 May 2022
