Advancing Transparency: Constitutional Court Rules in Favor of Access to Tax Records

The South African Constitutional Court has delivered a landmark ruling on May 30, 2023, in the case of Arena Holdings (Pty) Ltd and Others v SARS and Others. The judgment upholds the North Gauteng High Court’s declaration that certain provisions of the Promotion of Access to Information Act 2 of 2000 (PAIA) and the Tax Administration Act 28 of 2011 (TAA), which restricted access to tax records, were constitutionally invalid.

Background

Arena Holdings and Amabungane Centre for Investigative Journalism requested access to former President Jacob Zuma’s tax records, which the South African Revenue Service (SARS) refused in March 2019, citing confidentiality provisions in PAIA and TAA.

The Regulator’s View

As a respondent in the case, the Information Regulator (Regulator) expressed its approval of the court’s decision. The Regulator holds a constitutional mandate to safeguard the rights of access to information and privacy, as they pertain to the protection of personal information. The Regulator emphasized that an individual’s right to privacy must be balanced against other rights, particularly the right to access information.

The Court’s Order

The court’s order directed Parliament to address the identified constitutional invalidity within the given timeframe. The Regulator welcomed the order, stating that section 46 of PAIA must be amended to include tax records in the category of records that must be disclosed if such disclosure would reveal evidence of a contravention of, or failure to comply with the law and the disclosure is in the public interest.

Implications

The ruling is a significant stride towards promoting transparency by public bodies and public officials, striking a balance between the right to privacy and the right to transparency. It has broader implications for the rights of all South Africans, emphasizing the need for a balance between privacy and access to information in maintaining an open and accountable democracy.

The Regulator’s Mandate

The Regulator’s Mandate

Balancing Privacy and Access to Information

While the judgment has been hailed as a victory for transparency advocates, it is important to recognize that the right to privacy remains an important consideration. The delicate balance between privacy and access to information must continue to be a focus of ongoing discussions and future legal decisions.

The Constitutional Court’s ruling in the Arena Holdings case has far-reaching implications for the right to access information and the promotion of transparency in South African governance. It is a significant step forward in striking the delicate balance between the competing rights of privacy and transparency, ensuring that the constitutional right of access to information remains protected and robust.