STANDARD CHARTERED FINANCE ZIMBABWE LTD v GEORGIAS & ANOR 1998 (2) ZLR 547 (H)

Flynote

Court — judicial officer — recusal — allegation of bias — applicant must show real possibility of bias, based on objective grounds

Delict — vicarious liability — employer's liability for delictual acts of servant — test as to whether act is performed in course of employment

Practice and procedure — absolution from the instance — when should be granted — could should lean in favour of case continuing

Headnote

In an application to a judge to recuse himself, the test to be applied is not easily defined. Some cases favour the view that the test is whether, as a matter of fact, there is a real possibility of bias. Others accept that it is sufficient that there is a reasonable belief that a real likelihood of bias exists. However, there is no real difference between these approaches, since, unless there were a real likelihood of bias, a reasonable or right-thinking man would not believe that there was such a likelihood. In deciding whether this test has been satisfied, it is necessary to look, not only at the facts known by the applicant, but at all the relevant facts.

The applicant must show a reasonable fear, based on objective grounds, that the trial will not be impartial. It should also be remembered that judges are trained and experienced in the administration of the law. The mere possibility of bias apparent to a layman is not in itself sufficient to warrant the recusal of a judicial officer. On the other hand, a judge should not regard an application for refusal as an affront. He should bear in mind that what is required is conspicuous impartiality.

In considering an application for absolution from the instance, a judicial officer should always lean in favour of the case continuing. If there is reasonable evidence on which the court might find for the plaintiff, the case should continue.

A master will be liable for the acts of his servant committed in the course of his employment; but an act done by a servant solely for his own interests and purposes, and outside his authority, is not done in the course of his employment, even though it may have been done during his employment. But, provided the servant is doing his master's work or pursuing his master's ends, he is acting within the scope of his employment, even if he disobeys his master's instructions as to the manner of doing the work or as to the means by which the end is to be attained. Other tests have also been enunciated, whereby the courts invoke the

agency doctrine of actual or ostensible authority. The servant's acts must have some connection with his work, whether subjectively or objectively viewed. What has to be considered in the final analysis is whether the servant's departure from the path of duty constituted such an abandonment of, or deviation from, his prescribed task as to dissociate his wrong from the risk created by his employment and exonerate his master from liability.