FNB braces for summonses from robbery victims

Sixty robbery victims are taking First National Bank (FNB) to the Johannesburg High Court, with summonses amounting to R121 million being issued to the commercial lender. A statement issued by Trudie Broekmann Attorneys says: “FNB did not implement adequate security measures prior to the robberies and would not accede to the reasonable settlement claims of the victims.”

The summonses relate to a September 2015 robbery that saw robbers break into the FNB Sunnypark branch in Pretoria and make off with valuables and cash in safety deposit boxes valued at least R7 million. Two more robberies ensued in late 2016, in the Randburg and Parktown branches. Once FNB unveiled its settlement offers, the victims were dismayed by the compensation. Kelly Fraser – whose father’s safety deposit box was stolen – formed a support group that soon had around 200 victims as members. “When we worked it out after everything was settled, it was about 12% of the value of the claims,” she says. “They refused to look at any other claims, and after they gave their offer it was a take-it-or-leave-it situation.”

Meticulously choreographed

Investigations into the robberies have shown that there was a level of sophistication to the heists. The robbers gained access to the Randburg branch by cutting a hole in the floor of the men’s toilets, which had no security cameras, and stole the bank’s CCTV security cameras so they could not be identified.

The latest evidence has revealed that FNB employees colluded with the robbers to gain access to the vault, as was the case in the Parktown robbery: video evidence shows an FNB employee who was tasked with locking the vault merely closing the vault door without locking it. Alarm response phones were jammed in the hours leading up to the heist as a precaution, giving the robbers ample time to make their way to the vault. “We know that for one of the robberies, bank key holders’ phones were jammed at a time when they should have received a call from security operatives,” says Broekmann.

Contractual obligation

FNB contracts explicitly mention that it would not be legally responsible under any circumstances for loss or damage that may occur to the contents of the safety deposit boxes. A clause that Broekmann says “undermines the entire object of storing valuables at a bank.” 

The victims’ case therefore depends on their ability to prove gross negligence from FNB in its attempt to protect their valuables. “If we can demonstrate to court that FNB has been grossly negligent, then the exclusion of liability clause will not apply. Section 51 is just really echoing all that we had in the common law that says that you cannot exclude gross negligence. The bank was not only negligent, they were grossly negligent.” Broekmann’s argument refers to section 51 of the Consumer Protection Act, which provides that a supplier of services cannot exclude liability for gross negligence.

The case therefore hinges on the ability of Trudie Broekmann Attorneys to prove negligence beyond reasonable doubt. “There is evidence of collusion by FNB staff,” says Broekmann. “The staff left the bank vault unlocked and so allowed bank robbers [to access] client’s valuables [which it had agreed to safeguard] in exchange for a monthly fee.”

The basic principle of depositum custodire – ‘Guard what has been entrusted to you’ – is the legal construct involved when one party gives property to another to look after. The Financial Institutions (Protection of Funds) Act, which regulates trust property such as possessions in safety deposit boxes, would question whether the principle of depositum was followed. “We have the concept of depositum in the background where a bank is looking after the valuables of another person so they need to look after these deposited valuables with greater care and greater diligence than they would exhibit in respect of their own property,” says Broekmann.

In addition, few valuables in the safety deposit boxes were insured. Fraser estimates that “90% of the victims didn’t think of insuring their valuables because they thought why would I pay insurance on top of my fee when the bank is supposedly the safest place to keep anything.”

All efforts by Moneyweb to reach FNB’s legal team were unsuccessful. 

Source: moneyweb.co.za