Raiders of The Tomb (Part III)
When Justice Strikes
- Analize succeeds in her high court application to compel FNB Trust Services to provide her with late father’s financials
- Our team found anomalies in the provided records, including suspected and undeclared bank accounts, and unrecorded transactions on client’s bank accounts
- Analize has asked FirstRand Ltd to provide copies of bank records of her father’s undeclared bank accounts
"There may be times when we are powerless to prevent injustice, but there must never be a time when we fail to protest." Eliezer ‘Elie’ Wiesel, Novelist, activist and Nazi death-camp survivor - Nobel Lecture in 1986.
When the top executives of FirstRand Ltd declined to grant Analize van Tonder access to her late father’s financials, she reverted to those she believed would listen: the courts. But the road to the South Gauteng high court wasn’t an easy ride.
Every attorney she approached to handle her Promotion of Access to Information request shied away. As so many have all known, Analize van Tonder couldn’t find any initially couldn’t find an attorney prepared to take on the banks. They were either already too deep with the bank or didn’t want to lose their chance at the lucrative bank’s gigs. Yet she didn’t give up.
Why would a bank that had conducted business with her late father for decades decline to grant her access to records she had technically inherited, unless they had something to hide? There was no turning back. Like the attorneys, she was in too deep to reconsider any other options. Her persistence paid off when her application got to the high court.
Under Case No. 10945/2012, Analize prayer to the honorable court was to compel FNB Trust Services and its holding company, FirstRand Ltd, to grant her access to all bank accounts held in the names of her later father’s estate. In her founding affidavit, she outlined the background of her desperation to access the records.
In response, Barbara Catharine Botha, deposing her affidavit on behalf of the bankers concerned, began by trying to evoke the prescription laws. She then disputed Analize’s entitlement to the records she was seeking.
Botha then tried to move to the provision of the Trust Property Control Act that only required the trustees to keep records for five years after the termination of the Trust. Technically, the FJ Van Tonder / Analize Trust should have been terminated in 2003 when Analize turned 35, but the learned Botha failed to disclose to the honorable court that the life of the Trust or the management thereof had been indefinitely extended in 2003, by mutual agreement, and that the mandate was only terminated when FNB Trust Services failed to respond to the IRS request in 2005. Otherwise the Trust was still active. Besides, wasn’t it the responsibility of the trustees to hand over every record during the termination to the trust to Analize when she took over the affairs of the same?
“The manner in which the bank accounts were conducted is that FNB Trust Services (Pty) Ltd., as the trust company, held a trust banking account with FirstRand Ltd. That banking account would contain the funds of all of the various clients of the FNB Trust Services in much the same way as an attorney’s trust account would.”
But just in case those couldn’t hold, Botha disclosed that the FNB Trust Services managed the various estates accounts by heaping the assets of their various clients in a pool.
“The manner in which the bank accounts were conducted is that FNB Trust Services (Pty) Ltd., as the trust company, held a trust banking account with FirstRand Ltd. That banking account would contain the funds of all of the various clients of the FNB Trust Services in much the same way as an attorney’s trust account would.” That, as had been pointed out, is a contravention of the Administration of Estate Act.
Botha then submitted that Analize and her inherited companies were “the authors of their own misfortune in having delayed for more than four years” to take any steps towards making investigations, after she took charge of the affairs of her companies.
If that was to fend off Analize’s quest for justice, FirstRand executives had no clue of just how more determined to get to the root of the whole affair they had just made her. She countered every claim thereby and that must have worried the executives of this prestigious bank.
On the eve of the matter being argued at the high court, FirstRand Ltd threw in the towel and conceded to her demands. An agreement was drafted and made an order of the court.
On accessing the records provided, we believe the bankers didn’t seem ready for what their bundle of documents would contain. Having fed the obtained records into our custom-designed computer application, our team quickly discovered various anomalies.
Firstly, our application picked three different bank accounts that were operated by Estate Officer No. 06 – Hendrik Havenga. However, for reasons known only to FirstRand, the three bank accounts had variant names and entries:
Estate Late: Van Tonder FJ (marked Acc. No. 29)
FJ Van Tonder
FJ Van Tonder
The latter two accounts had no corresponding/identifying account numbers nor labeling indicating that the owner was deceased. Also picked up from the latter accounts were several transactions that were never recorded in the final Liquidation and Distribution Accounts filed by the bankers with the Master of the high court.
Our system failed to trace an amount of R443,474.26 drawn on June 15, 1990, using Cheque No. 04781 from one of the undeclared accounts (2008062897512, in the names of Wema Konstruksie (Pty) Litd). The beneficiary of this payment was simply indicated as First National Trust, Pretoria. Where was this amount’s final destination?
When caught unaware people tend to make mistakes. In the final Liquidation & Distribution Accounts signed off to the Master’s office dated 15 July 1991 by the executor of the will, HC Strauss, 3,000 Knights Gold Mining Company Ltd. shares held by the late Van Tonder remained valued at R3,960. However, on the unnumbered account of Van Tonder FJ, an entry dated 06 June, 1991 pertaining to the same company, indicated a divestiture from the company which generated R1,433,425.52.
So if the bankers had divested from Knights Gold Mining Company nearly a month earlier, why would they still reflect the crazily undervalued figure in their submission to the Master? And where did this R1.43 million end up? These are some of the questions, we’ve learnt, Analize through her attorneys, recently sought to have clarified by FirstRand Ltd when she demanded copies of bank records of the undeclared bank accounts of her late father.
We shall monitor whatever card this mega financial institution shall play next. We don’t seem to have heard the last of this yet.