Prime Real Estate v Knight Frank and S. Masuku and Olshevik Investments (Pvt) Ltd

The plaintiff (Prime Real Estate) was leasing the 2nd floor apartment of Robinson House, Harare from the third defendant (Olshevik Investments) through the first defendant (Knight Frank) who was the managing agent. The second defendant (S. Masuku) was employed by the first defendant as a property manager. On 11 September 2009, the second defendant instructed that electricity be disconnected to the second floor without prior warning to the plaintiff. The second defendant claimed the disconnection was to avert danger due to suspicious noise from the main electricity distribution board, while the plaintiff alleged it was to induce tenants with rental arrears to pay, affecting even tenants like the plaintiff who were current on payments. The plaintiff claimed damages of $7,550 for lost business during the disconnection and $22,500 for lost commission from an abortive property sale worth $300,000 which allegedly failed due to inability to communicate with the potential buyer during the electricity disconnection.

• Whether the defendants' disconnection of electricity without warning caused damage to the plaintiff
• Whether the plaintiff established a causal link between the disconnection and the alleged damages
• Whether the plaintiff provided sufficient evidence to substantiate its claim for damages of $7,550 for lost business
• Whether the plaintiff proved that the electricity disconnection caused the failure of a property sale transaction and resulting loss of commission of $22,500
• What standard of proof is required for claims for damages

The plaintiff's claim was dismissed with no order as to costs.

A party claiming damages must provide conclusive, substantiated evidence to support the claim. It is not competent for a court to embark upon conjecture in assessing damages where there is no factual basis in evidence, or an inadequate factual basis, for an assessment. A court cannot award an arbitrary approximation of damages to a plaintiff who has failed to produce available evidence upon which a proper assessment of loss could be made. The plaintiff must establish on the accepted standard of proof both the wrongful conduct and the causal link between that conduct and the alleged damages.

The court observed that there are many reasons why a potential buyer might withdraw from a promised purchase, ranging from inability to raise the purchase price to merely a change of heart. The court noted that while costs generally follow the result, this is not a rule of thumb, and courts can depart from this general proposition where there are compelling reasons. The court expressed the view that it was wrong for the defendants to switch off electricity without prior warning to the plaintiff, which justified depriving the defendants of a costs order despite their success in defending the claim. The court also commented on the suspicious timing of the purported withdrawal email, which came one day before the offer's expiry date, and the plaintiff's failure to use alternative communication methods during the electricity disruption.

This case reinforces important principles in Zimbabwean law (which shares common law principles with South African law) regarding the standard of proof required for damages claims. It emphasizes that parties claiming damages must provide concrete, substantiated evidence rather than conjecture or speculation. The case demonstrates the court's willingness to critically examine evidence, particularly electronically generated evidence, and to reject claims based on suspicious or unverified documentation. It also illustrates the court's discretion on costs, showing that even a successful party may be deprived of costs where their conduct was wrongful, even if it did not result in proven damages.