Taxpayer confidentiality versus access to information, freedom of expression, and the public interest in the tax affairs of a state president

Abstract

It is trite that taxpayer information is confidential in South Africa, subject to a few narrow exceptions. In the judgments in Arena Holdings Pty Ltd t/a Financial Mail & Another v South African Revenue Service & Others (hereafter, the Arena cases), both the Gauteng Division, Pretoria and Constitutional Court considered the conflict between the taxpayer’s constitutional right to privacy and the media’s constitutional rights of access to information and freedom of expression after the press requested access to the tax records of a former president. In doing so, the courts were faced with many diverse contentions. This article analyses selected issues arising from these arguments in both courts, namely taxpayer confidentiality and the exceptions thereto, access to information and the extension of the public interest override, and the nature of the application and powers of the court in these unique circumstances. The analysis goes beyond the scope of the ratio decidendi of the respective courts and provides obiter comments on practical questions raised in the affidavits and heads of argument filed before both courts. It finds that there is no precise precedent in South African tax law jurisprudence that is directly applicable to this exact scenario and considers the proposed extension of existing legislation.