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South Africa: It is constitutionally permissible to disclose tax records where such a disclosure is in the public interest

2 June 2023
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This week, the Constitutional Court ruled that it is constitutionally permissible to disclose tax records where such a disclosure is in the public interest.

In light of this, sections 67 and 69 of the Tax Administration Act (TAA) have been found to be unconstitutional to the extent that they preclude:

  • access to information being granted to a requester in respect of tax records where the requirements set out in section 46 of the Promotion of Access to Information Act (PAIA) are met; and
  • a requester from further disseminating information obtained as a result of a PAIA request.

Additionally, sections 35 and 46 of PAIA have been found to be unconstitutional to the extent that they preclude access to tax records by a person other than the taxpayer (a requester) even in circumstances where the requirements set out in terms of section 46 of PAIA are met.

So, what are these ‘requirements set out in section 46 of PAIA’ you may ask?  Briefly, section 46 of PAIA provides for the mandatory disclosure of certain records if the following requirements are met:

  • the disclosure of the record must reveal evidence of a substantial contravention of, or failure to comply with the law OR an imminent and serious public safety or environmental risk; and
  • the public interest in the disclosure of the record must clearly outweigh the harm contemplated in the provision of access to such record.

Where to from here?

The Constitutional Court has granted Parliament a period of 24 months (from 30 March 2023) to address the constitutional invalidity. Meanwhile, the court has ‘read-in’ words into sections 46 of PAIA and 69(2) and 67(4) of the TAA pending any measures to be taken by Parliament to address the constitutional invalidity. In terms of the current reading of the TAA (which includes the Constitutional Court’s reading in):

  • SARS officials (current or former) are not prohibited from disclosing taxpayer information to a person who is not a SARS official where access has been granted for the disclosure of the information in terms of PAIA.
  • A person who receives tax information as a result of a PAIA request may further disseminate the information.