Kirsty Simpson

Director

Location Head for Litigation and Regulatory

Quality is never an accident. It is always the result of intelligent effort.

— John Ruskin

Emailkirsty.simpson@dlapiper.com

Call+27 (0)11 302 0802

Johannesburg

About

Areas of FocusConsumer Goods, Food and Retail Energy and Natural Resources Financial Services Franchise Infrastructure, Construction and Transport Industrials Life Sciences Litigation, Arbitration and Investigations International Arbitration

Professional QualificationsAttorney of the High Court of South Africa

EXPERIENCE

Successfully advised a Mauritian company in regard to a R470 million dispute with a private equity fund arising from a sale and purchase agreement in terms of which our client, the seller, sold its entire shareholding in a South African producer and distributor of wine and spirits. The dispute pertained to an allegation by the buyer that the seller was in breach of its undertakings and/or warranties in terms of the SPA, placing the transaction at risk.
Successfully advised a Mauritian company in a dispute against a Saudi Arabian entity pertaining to the exercise of certain put options in respect of shares in a Mauritian entity in terms of a shareholders agreement. The dispute included an assessment of whether or not hyperinflation in Zimbabwe should be included in the calculation of Earnings Before Interest, Taxation, Depreciation and Amortisation (EBITDA) for purposes of calculating the price of the shares to be attributed in the exercise of the put option.
Acted for a listed entity in a dispute pertaining to a ZAR 5,3 billion transaction regarding the acquisition of a starch business and whether or not a material adverse change in terms of a sale purchase agreement has occurred as a result of the global novel coronavirus pandemic.
Acted for one of South Africa’s largest brick and mortar and online retailers in a dispute pertaining to its footprint of grocery stores in Botswana. The dispute related to the exercise of contractual rights in terms of various franchise agreements to cancel the agreements and exercise the right to purchase the business of each of the applicable retail outlets. There were various considerations from contractual, practical and competition law perspectives. The matter involved litigation in Botswana and the referral of the dispute to international arbitration proceedings under the auspices of the Botswanan Association of Arbitrators, in Gaborone, Botswana.
Acted for a contractor in delay and disruption claims in regard to an agreement with Eskom Holdings SOC Limited, to design, supply and complete the wet flue gas desulphurisation plant at the Kusile Power Station, with an aggregate value in excess of ZAR 2 billion (c. USD100 million).
Acting for a large mining company in the defence of claims in ad hoc arbitration proceedings in terms of an agreement for the design, supply and fabrication of certain items and installations, such claims including (i) extension of time and cost claims and associated reversal of late delivery penalties; (ii) payment of amounts allegedly due in terms of contract modifications; (iii) payment of amounts for works performed but not certified by the mine, as employer; (iv) payment of standing time claims arising from the alleged breach of contract; (v) loss of profit due to the descoping of a phase of the contract works; (vi) claims for amortisation, escalation and interest; and (vii) payment of damages for delays in onboarding the contractor after force majeure was declared in light of Covid-19, and instituting a counter-claim for contractual damages suffered as a result of the failure by the contractor to deliver the project on time, with an aggregate quantum of about R374 million.
Acting for the Secretary of State for Foreign and Commonwealth Affairs of the United Kingdom of Great Britain and Northern Ireland, duly represented by the Foreign Commonwealth Office in High Court proceedings against Mahanaim Developments (Pty) Ltd for breach of the underlying principal and development agreements between the parties, which pertain to the construction of two (2) residential compounds, being the Protea and Baobab compounds located in Pretoria, South Africa, as well as the applicable laws, to be used to accommodate British diplomats and other employees of the UK government, with an aggregate quantum of about GBP 2 million.
Acted on behalf of a glass manufacturing company in international arbitration proceedings under the auspices of AFSA International and related court proceedings pertaining to a dispute between its shareholders as to the validity of a shareholder resolution passed which, upon authentication and registration in Ethiopia, resulted in the dilution of the shares of the minority shareholder. The dispute placed the continuation of our client’s business at risk and was successfully resolved.
Acted for a multi-national steel manufacturing corporation in the investigation of potential fraud in a bidding process for a tender for the manufacture and delivery of steel, perpetrated between one of its competitors and the governmental body that issued the tender, including acting for the company in relation to various civil and criminal litigation proceedings in South Africa and advising on knock-on effects on civil and criminal litigation in Germany and Luxembourg against competitors for appropriation of commercially sensitive information, liaising with the governmental body, preparing a complaint for blacklisting of competitor for filing with state-owned company and the Department of National Treasury and ancillary advice to client on administrative law actions against the state-owned company and the Department of National Treasury.
Represented a multi-national, listed hospitality company in commercial dispute resolution aspects of the conclusion and implementation of a ground-breaking settlement of a major land claim pertaining to a hotel and casino for R1,2 billion, as well as matters relating to a share sale transaction; shareholders rights; directors rights and duties; trustees rights and duties; management of community issues; B-BBEE and empowerment; property law issues; communal property associations and regulatory and administrative law matters pertaining to casino licences.
Acted for a global life sciences player in private domestic arbitration proceedings under the auspices of the Arbitration Foundation of Southern Africa relating to contractual damages suffered by it as a result of the breach of a strategic co-operation agreement by its customer pertaining to, inter alia, the supply of cathlab and ultrasound medical equipment and associated services, and the failure by the client to make payments in terms thereof upon cancellation of the agreement.
Acted for a multinational insurance company in defending private arbitration proceedings instituted by an insured in respect of a warranties and indemnities insurance claim arising out of a sale of business transaction. The dispute involves the complex interpretation of warranties and indemnities clauses and novel accounting arguments in terms of expert valuations of a business.
Advised the board of directors of a multi-national telecommunications company on liability of the directors and that of its subsidiaries in South Africa, Guinea Conakry and Guinea Bissau, in regard to certain allegedly fraudulent conduct, with reference to financial reporting obligations, listings requirements, statutory and common law legal obligations and impacts on financing arrangements.
Acted for an African bank in proceedings instituted in the High Court of South Africa for a claim for payment by the bank of Euro 49 million that the applicant alleges was paid to the bank on its behalf by an investor. The applicant requested further that if the bank failed to make payment of such amount, that it be investigated by the South African Reserve Bank, which (even if unfounded) could lead to reputational harm to the bank.
Successfully advised a developer in regard to its sale and cession to the subsidiary of a Japanese company of its rights in respect of certain solar photovoltaic energy generating facilities situated in the Northern Cape, South Africa, and thereby avoiding the threatened termination of the sale agreement and incurring of damages. Acted for a well-known FMCG buyer against a seller in four claims for breach of various warranties provided by the seller to the buyer in terms of a sale of business agreement whereby the seller sold its sweets and confectionary business.

Languages

Education

Rhodes University, BA, 2000

Rhodes University, LLB, cum laude, 2002

Rhodes University, LLM, cum laude, 2003

University of the Witwatersrand, Certificates of Competence in Advanced Company Law, 2011

Awards

Legal500 "Firm to Watch" (2022)
Best Lawyers: Litigation (2022)
Best Lawyers: Litigation (2023)
Chambers Global 2023: Dispute Resolution – ranked in Band 4: “Kirsty has a broad practice offering, with notable strength in construction disputes stemming from allegations of delays and defects. She also has experience in shareholder disputes and breach of contract proceedings.”

Seminars

Speaker at the African Arbitration Association on “COVID and its impact on dispute resolution” (2022)
Speaker at the ICC South African Arbitration Day on “Understanding and meeting arbitration needs in the region” (2023)

Memberships And Affiliations