Kate Swart

Full Profile

Kate studied at the University of Cape Town where she obtained BA and LLB degrees, as well as an LLM in environmental law. She was admitted as an attorney of the High Court of South Africa in April 2014.

Kate has experience in commercial dispute resolution, with a focus on insurance and environmental law. 

She has extensive experience in litigation and alternative dispute resolution in both South Africa and various jurisdictions in sub-Saharan Africa, with a focus on commercial disputes, general insurance business, environmental liability, environmental rehabilitation and construction guarantees and guarantee securities. 

In addition, she focuses on financial services regulatory matters, advising clients on investigations by regulators and hearing before various tribunals, as well as assisting them to achieve regulatory compliance. 

Kate advises a wide range of clients, including insurers, reinsurers and other financial service providers, contractors and manufacturers. These include international clients with interests in Sub-Saharan Africa and local clients involved in international transactions.

Kate has in-depth experience in respect of the NEMA Financial Provisioning Regulations and environmental rehabilitation guarantees in the mining sector, and has represented the insurance industry in making representations to the regulator in relation to revision of such regulations. 

She has advised on environmental liability exposure in both commercial and insurance contexts.
 

Experience

Commercial litigation

• Representing pharmaceutical warehouse operator in arbitration proceedings with customer and landlord.
• Advising international luxury vehicle manufacturer on dispute with local distributor.
• Representing international reinsurer in recovery of reinsurance premiums following liquidation of insurer.
• Representing insurer in defending claim by administrator for alleged outstanding commission due on investment products.
• Representing large life insurer in defending claim for alleged outstanding commission claimed by administrator in relation to reinsurance cover sold in various African jurisdictions.
• Instituting recovery proceedings against large international company for outstanding premium due on a bespoke insurance policy.
• Advising client in relation to shareholder and director dispute and subsequent dissolution of company.
• Representing insurer in recovery proceedings against sureties following default on settlement and acknowledgement of debt.
• Representing various clients in enforcing restraint of trade provisions against former employees.
• Instituting proceedings on behalf of large insurer for recapitalisation of cell in client.
• Advising client in the settlement of several interconnected complex litigation proceedings between multiple interlinked commercial entities and individual directors and shareholders through the dissolution of various corporate entities and transfer of intellectual property and termination of licenses.
• Representing large insurer in recovery of amounts due in terms of shareholders agreement and suretyships.

Regulatory and Investigations

• Advising client in relation to investigation by FSCA following allegations of insider trading.
• Assisting client in relation to investigation by FSCA into whether client acting as an over-the-counter derivative provider without the necessary licence.
• Assisting over-the-counter derivative provider in making representations to South African Reserve Bank in relation to exchange control approvals for transfer of funds offshore for hedging purposes.
• Assisting insurer in bringing reconsideration application before Financial Services Tribunal to reconsider decision by Prudential Authority to refuse amendment to licence conditions.
• Advising client in relation to use of guarantee as auxiliary own funds and preparation of legal opinion required by Prudential Authority in relation to such guarantee.
• Representing various clients in reconsideration applications before Financial Services Tribunal following debarment of representative.
• Advising client on internal investigation and disciplinary proceedings against employee following breach of JSE Listing Requirements. 
• Assisting client in liaising with JSE following breach of JSE Listing Requirements.
• Advising clients following dawn raid by Competition Commission.
• Advising client following FSCA investigation into allegation of conflict of interest in carrying out financial services.

Insurance

• Representing insurer in litigation proceedings, mediation and negotiation of settlement with reinsurance broker in relation to large marine loss following property damage by hurricane.
• Various insurance policy reviews, including contingency liability policies, environmental liability policies, and environmental rehabilitation guarantee policies.
• Assisting insurers in reviewing and updating their mining rehabilitation guarantee policies following the introduction of the NEMA Financial Provisioning Regulations.
• Representing insurers instituting recovery proceedings following major landslip and consequent damage to properties.
• Assisting client to review contingency liability policy.
• Representing large insurer in recovery proceedings against large mobile phone manufacturer for recovery of outstanding premiums.
• Acting for reinsurer in defending claim by intermediary for commission relating to policies underwritten throughout Africa.
• Representing insurer in defending claim on construction guarantee following fraud committed by employer.

Environmental 

• Arranging stakeholder meetings on behalf of the insurance and banking industries, at the request of and with the Department of Forestry, Fisheries and the Environment and the Department of Mineral Resources and Energy in relation to the draft Financial Provisioning Regulations published in terms of NEMA in relation to environmental rehabilitation in the mining and oil and gas sector.
• Advising client in relation to liability for and reporting of contamination of land in terms of Part 8 of NEMA.
• Assisting client in reviewing environmental liability insurance policy.
• Acting for insurers in litigation to recover environmental clean-up costs in excess of R17 million following a major fuel spill.
• Advising South African company in relation to environmental liability and financial provisioning obligations in the oil and gas sector.
• Advising international oil and gas company in relation to statutory environmental liability in South Africa.

Mining, Oil and Gas

• Keynote speaker and panellist at the 2016 EY Mining and Metals Conference on the topic of the NEMA Financial Provisioning Regulations, with a focus on the impact on environmental bonds.
• Advising client on ownership of stockpiles.
• Advising a leading mining rehabilitation insurer following demands on multiple environmental guarantees by the Department of Mineral Resources and Energy.
• Assisting large foreign state-owned petroleum company in relation to potential purchase of stake in offshore oil and gas project, including advice on legislative landscape, due diligence, review of commercial agreements ad advice on environmental liability and financial provisioning obligations.
• Assisting client in making representations to National Energy Regulator of South Africa motivating for the use of guarantees in respect of financial provision for environmental rehabilitation of land used in connection with activities licensed in terms of the Petroleum Pipelines Act

Construction

• Assisting large international contractor in disputes with sub-contractors in Zambia and Botswana.
• Drafting bonds, bond securities and JBCC and FIDIC based construction contracts.
• Assisting various insurers in relation to liability in relation to demands on construction guarantees, as well as recoveries on security documents provided by insured parties following demands on construction guarantees.
• Guarantees and Securities
• Assisting clients in negotiating and concluding various security documents, including indemnities, suretyships, cession of book debts and pledge of collateral funds in relation to guarantee facilities, including cross-border security documents provided by entities situation in various foreign jurisdictions across Europe and the Middle East.
• Advising clients on validity and compliance of demands made on various guarantees, including construction guarantees and environmental rehabilitation guarantees.
• Instituting recovery proceedings on behalf of insurer following payment made in respect of construction guarantees.
• Representing client in defending proceedings instituted by employer following rejection of demand made on guarantee due to fraud.
• Advising client on potential prescription of liability in relation to construction guarantees.
• Advising on negotiation of wording for insurance policy for environmental rehabilitation guarantees worth over R1 billion.
• Representing clients in lodging claims in business rescue proceedings and liquidation proceedings for outstanding premium in relation to guarantee facilities.
• Assisting clients in conclusion of tripartite settlement agreements to transfer notional policy benefits in environmental rehabilitation guarantee policies to purchasers of mining rights in various business rescue proceedings.