Touch the Sky Tours & Distributors (Pvt) Ltd t/a Modern Motors Service Station v Modern Motors Limited

The respondent owned immovable property at No. 120-128 Herbert Chitepo Street Bulawayo. On 30 January 2015, the parties entered into a written lease agreement for three years expiring on 31 January 2018, during which the appellant operated a fuel garage. On 30 November 2017, the respondent gave notice of non-renewal of the lease. The appellant rejected this notice. On 26 January 2018, the appellant's lawyers notified respondent that the appellant was not accepting the non-renewal notice. The appellant continued occupation past 31 January 2018, claiming the lease automatically renewed under clause 4(a). The respondent issued summons (case 2094/18) but later withdrew. On 27 March 2018, the respondent gave a fresh 3-month termination notice received on 29 March 2018. The appellant refused to vacate by letter dated 24 May 2018. When appellant remained in occupation beyond 1 July 2018, respondent issued fresh summons on 6 July 2018 claiming confirmation of termination, ejectment, holding over damages of $1150 per month, and costs. The Magistrates Court granted judgment in favor of the respondent on 1 October 2018. The appellant appealed to the High Court.

• Whether the respondent gave requisite notice to the appellant to vacate the premises
• Whether the notice of termination dated 27 March 2018 was valid despite a previous invalid notice dated 30 November 2017
• Whether the appellant had any right to refuse to vacate the premises
• Whether the appellant became a statutory tenant under the Commercial Premises (Rent) Regulations, 1983 upon expiry of the lease on 31 January 2018
• Whether the respondent was entitled to evict the appellant from the premises
• The proper interpretation of clause 4(a) of the Lease Agreement regarding automatic renewal and termination

The appeal is dismissed with costs.

Where a lease agreement contains an automatic renewal clause (clause 4(a)) providing that unless notice is given the lease will be deemed renewed on the same terms and conditions subject to termination on two calendar months' notice, and the lease automatically renews upon expiry, no statutory tenancy arises under the Commercial Premises (Rent) Regulations, 1983 because the tenant continues to be governed by the renewed contractual lease. A notice that is null and void ab initio for non-compliance with the lease agreement does not need to be formally withdrawn before a subsequent valid notice can be given. A party cannot challenge the validity of a subsequent notice on the basis of a prior notice which that party itself rejected as invalid and which the court found to be null and void. Upon automatic renewal of a lease on the same terms and conditions, the termination provisions of the original lease apply, and upon proper notice and expiry of the notice period, the landlord becomes entitled to evict a tenant who remains in occupation.

The court made strong observations about the appellant's lack of bona fides in noting the appeal, stating it was filed "without the bona fide intention of testing the correctness of the judgment of the court a quo but for the indirect purpose of buying time for the appellant and delaying the respondent's recovery of its premises." The court characterized the third ground of appeal as "utterly frivolous and vexatious" and "deliberately contrived," noting it purported to appeal against a finding the lower court never made. The court emphasized that the grounds of appeal were "premised on totally untenable arguments which cannot withstand scrutiny" and that some grounds "defies logic and common sense." These observations serve as a warning against tactical appeals designed merely to delay enforcement of legitimate rights.

This case clarifies important principles in Zimbabwean landlord-tenant law regarding: (1) the effect of invalid termination notices on subsequent valid notices; (2) the operation of automatic renewal clauses in commercial lease agreements; (3) the circumstances under which statutory tenancy arises under the Commercial Premises (Rent) Regulations, 1983; and (4) the principle that where a lease automatically renews on the same terms and conditions, there is no gap that would allow statutory tenancy to arise. The judgment also demonstrates judicial intolerance for frivolous appeals filed merely to delay enforcement of landlords' rights. It reinforces that parties cannot rely on notices they themselves rejected as invalid, and that automatic renewal clauses must be interpreted according to their plain terms.