The Constitutional Court’s judgment in the matter of Arena Holdings v SARS - in the battle over former president Jacob Zuma's tax records - is an important reminder insofar as the balancing of competing rights is concerned, writes Ahmore Burger-Smidt.
On 30 May 2023, the Constitutional Court handed down its ruling in the matter of Arena Holdings (Pty) Ltd and Others v SARS and Others (“Arena Holdings v SARS“), and declared, inter alia, that sections 35 and 46 of the Promotion of Access to Information Act 2 of 2000 (“PAIA“) are unconstitutional insofar as they preclude a person’s access to the tax records of another. The majority judgment (penned by Kollapen J) agreed that section 35 of PAIA imposes an absolute prohibition on disclosure of taxpayer information to a person other than the taxpayer. While recognising that certain limitations of rights are permissible under our Constitution, the majority held that section 35, read with section 46, of PAIA is unconstitutional insofar as it unjustifiably limits the right of access to information and the right to freedom of expression as provided in the Constitution.