IN THE HIGH COURT OF LESOTHO
In the matter between:-
ATTORNEY-GENERAL 1st Respondent
HER WORSHIP MS RAMAKHULA 2nd Respondent
KHAUHELO MOSENENE 3rd Respondent
CLERK OF COURT 4th Respondent
Coram: Hon. M. Hlajoane
Date of Hearing: 17th November, 2014
Date of judgment: 24th February, 2015.
Whether there can be an award of costs in Criminal Proceedings – The review Application having been made by the Legal Officer from Commissioner of Police’s Office – The investigating officer having deposed to the founding affidavit – The Court having withdrawn the matter on the Application by the Applicant.
HELD: After making an order withdrawing the matter the Court became functus officio.
HELD: That there could not be any award of costs in a Criminal case where the complaint could not be classified as unfounded and vexatious.
 This is an Application for review of the proceeding of the Magistrate’s Court. The Court had made an order for the release of a motor vehicle to the person who was charged with its unlawful possession under section 343 of Criminal Procedure and Evidence Act (the Act).
 The Legal Officer in the Commissioner of Police’s office with a delegation from Director of Public Prosecution’s (DPP) Office filed an Application for the review of that order by the magistrate challenging the procedure adopted of dealing with an exhibit in a case still pending before Court.
 The Investigating Officer is the one who deposed to the founding affidavit. The 3rd Respondent after filing intention to oppose also filed a Notice in terms of Rule 8 10 © of the High Court Rules challenging amongst others the locus standi of the investigating officer to have deposed to the founding affidavit and the Legal Officer in the Police Department to have brought the Application.
 Even before the points in limine could be argued, the Legal Officer filed a Notice of withdrawal, withdrawing the matter against the Respondents showing that the matter was being settled out of Court. The Notice of withdrawal was served on the 3rd Respondent’s counsel on the 11th August, 2014. On the 17th September was the date on which 3rd Respondent’s counsel had set the matter down for hearing.
 On the date set for the hearing of the matter it was only the Applicant’s counsel who was in attendance as no one appeared for the 3rd Respondent. Applicant’s counsel pursued his Notice of withdrawal which was granted by the Court.
 Almost a month later on the 16th September, 2014 3rd Respondent’s counsel filed heads of argument in which he was asking for costs in that the procedure adopted by the police is somehow akin to proceedings brought by a private prosecution. He relied on section 21 of the Criminal Procedure and Evidence Act (the Act).
 The section relied on deals with costs of private prosecutions. The section is about the discretion to be exercised by the Court in prosecution at the instance of a private party and the person prosecuted being acquitted.
 The section clearly leaves the Court with the discretion in awarding costs. Such costs will only be awarded where the Court considers or pronounces the complaint or charge as unfounded and vexatious.
 The question to be asked at this stage is whether the issue of costs is to be considered after the Court has granted the withdrawal of the matter by the Applicant? Applicant argued that the Court after making its ruling of granting the withdrawal is to be considered ‘functus officio’. I wouldn’t agree with him more.
 But, even if the Court were to consider the question of costs, as rightly pointed out by Applicant’s counsel, the Legal Officer who brought the review proceedings was acting in a representative capacity. The Legal Officers from Ministries and Government departments have delegated powers from the DPP. So that it could not be said or be equated to private prosecution. Even assuring for a moment that it could be considered as a private prosecution, it cannot be said the Legal Officer’s complaint was unfounded and vexatious.
 The Court therefore concludes that the question of costs does not arise in these criminal proceedings and since the matter has already been withdrawn by the Court the Court remains functus officio.
For Applicant: Adv. Maiseng
For 3rd Respondent: Adv. Potsane
 Criminal Procedure and Evidence Act 9 of 1981
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