IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: 5544/2018
In the matter between
IMBANI HOLDINGS (PTY) LTD APPLICANT
and
HOMSEK (PTY) LTD FIRST RESPONDENT
HOMSEK ULTRA (PTY) LTD SECOND RESPONDENT
ANTON HOMSEK FAMILY TRUST THIRD RESPONDENT
HOPEFIELD TRUST FOURHT RESPONDENT
ANNA’S RUST TRUST FIFTH RESPONDENT
BELLE VACHE TRUST SIXTH RESPONDENT
PRINSPAN TRUST SEVENTH RESPONDENT
ANTON HOMSEK EIGHTH RESPONDENT
IMBANI HOMSEK FARMING (PTY) LTD NINTH RESPONDENT
IMBAN!I HOMSEK HOLDINGS (PTY) LTD TENTH RESPONDENT
IMBANI HOMSEK PROPERTIES (PTY) LTD ELEVENTH RESPONDENT
IMBANI HOMSEK TRADING (PTY) LTD TWELFTH RESPONDENT
Neutral Citation: /mbani Holdings (Pty) Ltd v Homsek (Pty) Ltd and Others (5544/2018)
[2025] ZAFSHC 205 (4 July 2025)
Coram: Van Rhyn J
Heard: 17 April 2025
Delivered: 4 July 2025
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Summary: Application for amendment — objection on basis that ‘dual claims’, on basis of
unjustified enrichment and contractual claim are mutually exclusive and must be pleaded in
the alternative. Condictio indebiti is a claim at securing the return of a mistaken transfer of
money which was not owed at all — payment claimed in consequence of breach of contract is
distinctly contractual remedy — particulars of claim — if amended — would be excipiable.
Amendment refused.
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ORDER
The application to amend is dismissed with costs, which costs shall include costs of counsel
on Scale B.
JUDGMENT
Van Rhyn J
[1] This is an interlocutory application by the plaintiff, being the applicant in this matter,
to amend its particulars of claim in accordance with a notice of intention to amend dated 14
January 2025 and for a costs order on attorney and client scale. This application follows
upon an objection raised by the defendants, cited as the respondents in this matter, against
such contemplated amendments. For ease of reference, | shall refer to the parties herein
as they were referred to in the plaintiff's notice of intention to amend and in the defendants’
notice of objection.
[2] The plaintiff, Imbani Holdings (Pty) Ltd, is a company with limited liability registered
as such in accordance with the company laws of the Republic of South Africa, having its
registered office, alternatively its principal place of business at Bloemfontein. The first,
second, ninth, tenth, eleventh and twelfth defendants are private companies, all with their
principal place of business, alternatively registered address at the Farm Newlands 31A,
Bloemfontein. The third, fourth, fifth, sixth and seventh defendants are trusts, duly registered
and represented by the trustees as described in the plaintiff's particulars of claim. The eighth
defendant is Anton Homsek (‘Mr Homsek’), an adult male farmer and business man of the
Farm Newlands 31A, Bloemfontein.
[3] On 2 November 2018 the plaintiff issued summons against the defendants in terms
of which the plaintiff alleged that on 5 April 2012 at Rosebank, the plaintiff, represented by
Briss Mathabane, and the first to eighth defendants, represented by Mr Homsek, concluded