Judgment No. SC 14/18
Civil Appeal No. SC 524/17
determination of the arbitrator. In our view, we entirely agree with the court a quo that
there was no proper review before it. We also take the view that the court should have
stopped after making those findings and should not have proceeded to deal with the merits
of the review application.
We note that the appeal herein is stated to be against the whole judgment of
the High Court. However, the grounds of appeal set out in the notice of appeal are confined
to the merits of the arbitrator’s determination on the preliminary issues. They do not in any
way impugn the main findings of the court relating to its powers of review and the
impropriety of the purported review application before it.
We also note that, following the determination of the arbitrator on the
preliminary points, the arbitration proceedings were continued with the active participation
of the appellant. The arbitrator then rendered his final award on 3 December 2015.
Thereafter, the appellant instituted further review proceedings on 24 May 2016 against the
final award. These proceedings were also dismissed by the High Court on 27 October 2016
on the basis that the review was improperly instituted. Both the final award of the arbitrator
and the judgment of the High Court remain extant. As was grudgingly conceded by the
appellant, this fact renders the present appeal academic and futile.
As regards costs, Mr Nkomo, for the first respondent, sought costs on a
punitive scale. The reasons therefore were that the appellant has yet to relinquish the
franchised premises, notwithstanding his contention that the franchise agreement is a
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