Mmampobane Elizabeth Motsepe v The Commissioner for Inland Revenue

The Commissioner for Inland Revenue sought the sequestration of the joint estate of Mr and Mrs Motsepe, married in community of property, based on substantial unpaid income tax assessments issued against Mr Motsepe for the 1988–1995 tax years. Mr Motsepe was a fugitive from justice at the time, having escaped custody while facing serious criminal charges. The Commissioner issued additional and estimated tax assessments totalling over R6 million and filed a certified statement under section 91(1)(b) of the Income Tax Act, giving it the effect of a civil judgment. Mrs Motsepe opposed the sequestration and challenged the constitutionality of sections 92 and 94 of the Income Tax Act, which restrict taxpayers from disputing the correctness of assessments in proceedings other than objection and appeal under the Act. The Transvaal Provincial Division referred the constitutional question to the Constitutional Court under section 102(1) of the interim Constitution.

The Constitutional Court held that the referral under section 102(1) of the interim Constitution was not competent and declined to rule on the constitutionality of sections 92 and 94 of the Income Tax Act. The constitutional issue was not decided.

This case is significant for clarifying the requirements for a valid referral to the Constitutional Court under section 102(1) of the interim Constitution. It reinforces the principle of constitutional avoidance and confirms that litigants cannot bypass available statutory remedies to force constitutional adjudication. In the tax context, it underscores the primacy of the objection and appeal mechanisms in the Income Tax Act and limits collateral constitutional challenges in enforcement proceedings such as sequestration.