sought. To move two separate applications on urgency and directed at the same respondents largely involving the same issue, in my view smacks of abuse of the court’s processes, bombarding the respondents with different applications when one to which they could put their undivided attention, could have been lodged. [39] Another reason that I find should disincline the from granting the relief sought by the applicants is the very nature of the winding up of the applicant. In para [17] above, I stated that according to the learned author Henochberg, the sections in question are of application only in circumstances where there is a case of involuntary winding up of the company because the company is unable to pay its debts. [40] It stands as a historical fact that in the instant case, the winding up of the 3rd applicant was by a special resolution of the shareholders. This clearly is not a case of an involuntary winding up. As intimated earlier, the purpose of this exercise, is to ascertain, in cases where foul play is suspected in the company ending up moribund and unable to pay its debts, and the process is geared to getting an explanation from those whose hands appear to be tainted with blood or may have useful information that may assist the liquidators in tracing the funds or the property of the company in liquidation. [41] In this regard, Heathcote AJ dealt with the purpose for the application of the said section in Gases and Others v The Social Security Commission and Others: The learned Acting Judge stated the purpose as: ‘ . . . to assist the liquidators to establish where the N$ 30 million is.’ Clearly, some foul play was suspected in that matter and the calling of those who may have had information regarding where the said amount was, made a great deal of sense. [42] In the instant case, it is clear that the shareholders of the 3rd applicant are the ones who took the decision to wind up the company and there is no
allegation of foul play. In this matter, it seems that the applicants want the respondents to be hauled before the enquiry, when there does not, from what is stated in the papers, any allegation of wrongdoing on their part. From the papers before me, they have afforded every assistance to the liquidators, by making available the documents at their disposal and access also to the Asycuda++ system. That the respondents would have to be subjected to the processes in the circumstances is in my view plainly wrong and hence reinforces the view earlier expressed that the application amounts to an abuse of the provisions in question and the processes of this court as well. [43] What is undeniable is that the respondents want their pound of flesh as it were from the 3rd applicant and it is for the 3rd applicant, in the circumstances, to provide information that will prove that the goods that were imported into the country were actually exported outside the country and outside the common customs area. In the absence of that proof, the 3rd applicant is presumed to owe dues to the Government. To subject the respondents to that enquiry would be the high watermark of unfairness. It is also unclear from the papers what efforts the applicants have taken to trace the Managing Director of the 3rd applicant, who it is alleged, can no longer be traced. [44] In dealing with this issue and the need, as deposed to by the applicants for the holding of the enquiry, the following can be gleaned from the founding affidavit filed in support of this application for the commission of enquiry: ’16.9The Ministry is not willing to re-instate our access to the Asycuda++ system or to re-register us as an export user so as to enable us to verify these transactions. 16.10 As liquidators, we are compelled to investigate these transactions. 16.11 The only option to us is to enquire into these transactions as contemplated by section 423 and 424 of the 2004 Act. I verily believe that a Commission of Enquiry in