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Kirsten Kern

Head of Financial Services Regulatory | Johannesburg

Kirsten-Kern

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Contact

T: +27 11 669 9553

Overview

Kirsten is head of the Financial Services Regulatory practice in our Johannesburg office. She specialises in banking and financial services regulatory law and has practiced in this field for the firm’s account since 2006.

Kirsten has over 16 years of experience and expertise in all aspects of banking, financial services and investment management regulatory law, and regularly advises clients, both local and foreign, on the content and implications of the National Credit Act, 2005, the Financial Advisory and Intermediary Services Act, 2002, the Collective Investment Schemes Control Act, 2002, the National Payment Systems Act, 1998, the Banks Act, 1990, the Financial Intelligence Centre Act, 2001, the Financial Markets Act, 2012, the Insurance Act, 2017, the Electronic Communications and Transactions Act, 2002 and the Consumer Protection Act, 2008.  Kirsten also advises clients on the Financial Sector Regulation Act, 2017 (South Africa’s primary “Twin Peaks” regulation), as well as on the Conduct of Financial Institutions Bill and its implications for the future of the South African financial services landscape under the ‘Twin Peaks’ model of regulation.

She has strong contacts with the various regulatory bodies and agencies operative under the Acts on which she advises and she regularly engages on behalf of clients with the National Credit Regulator, the Financial Sector Conduct Authority, the South African Reserve Bank, the Prudential Authority, the Financial Intelligence Centre and the National Consumer Commission.

Kirsten regularly advises top-tier local and foreign clients including financial service providers and asset managers, fund managers, payment services providers, fintech service providers, banking institutions, credit providers and credit bureaux with applications for regulatory registration, licensing, authorisation, approval and exemptions.  In addition to registration, licensing, authorisation and approval requirements, Kirsten assists clients with ongoing compliance and regulatory enforcement matters, and with product structuring, distribution and marketing in compliance with  applicable legislation.

Experience

  • Advised and assisted various entities, local and foreign, to obtain authorisation or exemptions (where relevant) from the Financial Sector Conduct Authority in accordance with the requirement to be licensed as a financial service provider in terms of the Financial Advisory and Intermediary Services Act, 2002.
  • Advised and assisted foreign entities to establish a local presence in South Africa and to obtain the necessary authorisation / licensing from the National Credit Regulator in accordance with the National Credit Act, 2005.
  • Advised a leading South African bank on capital adequacy requirements and their application to its Pan-African subsidiaries.
  • Advised a South African bank in relation to its intention to acquire an African subsidiary in compliance with the Banks Act, 1990.
  • Advised Capitec Bank Limited in relation to its proposed acquisition of Mercantile Bank Limited.
  • Regularly advises Credit Suisse AG (Switzerland), Morgan Stanley, J.P. Morgan, Bank of America, N.A., Bank of New York Mellon, Standard Chartered Bank, Nomura International PLC, Nomura Asset Management, Nomura International PLC, T. Rowe Price International Ltd, The Standard Bank of South Africa, Capitec Bank Limited and countless other clients regarding all aspects of South African banking and financial services regulation.
  • Established Clearscore Pty Ltd in South Africa from scratch in 2017 and continues to regularly advise ClearScore and other entities regulated in terms of the National Credit Act, 2005, regarding ongoing compliance obligations and the making of submissions to the National Credit Regulator.
  • Advised WiGroup Proprietary Limited on the regulatory implications of a mobile application which facilitates peer-to-peer money transfers.
  • Advised AirBnB Payments UK Limited on its proposed offering of peer-to-peer payment capabilities in South Africa
  • Advised WhatsApp on proposed payments services in South Africa.
  • Advised Mastercard on a host of broad payments-related matters from a regulatory and legal perspective.
  • Acted as African counsel for Validus Holdings in its acquisition of Flagstone Reinsurance Holdings RSA, a New York Stock Exchange listed entity, and specifically in relation to Flagstone’s subsidiary, Flagstone Reinsurance Africa Limited, a South African-domiciled short-term insurer.
  • Advised Midbrook Lane Pty Ltd, Riskowitz Value Fund, Protea Asset Management LLC and Khrom Investments Fund, LP regarding the acquisition of increased indirect shareholding in three registered insurers forming part of the Constantia Group
  • Advised Alexander Forbes Group Holdings on its dual track M&A and ZAR 9.8 billion IPO process, which resulted in Alexander Forbes Group Holdings listing on the JSE. After announcing its intention to float, the company launched an offer for subscription and a concurrent offer for sale by existing shareholders.

Awards

  • Chambers and Partners ranked Kirsten in Band 3 for FinTech Legal for five consecutive years (2020-2024).
  • Who’s Who Legal: Banking (Regulatory) named Kirsten as a Leading Lawyer – South Africa for years 2017, 2018, 2020, 2021, 2022 and 2023).
  • Who’s Who Legal: Fintech named Kirsten as a Leading Lawyer – South Africa for years 2018 to 2022 (2023 inclusion confirmation pending).

AREA OF EXPERTISE

Qualifications

  • LLB and LLM (Banking Law) degrees (both awarded cum laude) from the Rand Afrikaans University (RAU) (now the University of Johannesburg).

INSIGHTS

South Africa: Corporation for Deposit Insurance launched Chambers and Partners: Fintech 2023 Guide – South African Chapter South Africa: Grey-listing by the Financial Action Task Force South Africa: Commencement of sections 31 and 56 of the Financial Intelligence Centre Act, 2001 South Africa: Financial Services Conduct Authority Information Request 7 of 2022 South Africa: Declaration of crypto assets as a financial product Chambers and Partners: Fintech 2022 Guide – South African Chapter Lexology: Getting the deal through – Fintech 2022: South African Chapter South Africa: Consultation paper on the feasibility of establishing a domestic card scheme The Directive for Conduct within the National Payment System In Respect of Domestic Card Transactions: Amendment of the Effective Date Joint Standard 1 of 2020: Fitness, Propriety and other matters related to Significant Owners, South Africa Publication of Conduct standards 1 and 2 of 2020 – FSCA Communication 25 of 2020 (CIS), South Africa COVID-19: Further Communication to Accountable Institutions COVID-19: Proposed implementation dates of specific regulatory frameworks, South Africa COVID-19: Communication to South African accountable institutions COVID-19: Expectations of managers of collective investment schemes, South Africa COVID-19: Amended Regulations – essential services expanded to include broader financial services and financial markets activity, South Africa COVID-19: FCSA’s expectations of regulated entities – South Africa COVID-19: Impact on compliance with various regulatory deadline requirements in South Africa 2019 Thomson Reuters Practical Law Q&A Guide to FinTech in South Africa Regulations under the Financial Markets Act, 2012: Authorisation as an OTC Derivatives Provider (ODP) State-owned companies and the Banks Act Thomson Reuters Practical Law Q&A guide to FinTech in South Africa Twin Peaks model of financial regulation Fintech is on the fast track but so is cybercrime Amendment of the Notice on Qualifications, Experience and Criteria for Approval as Compliance Officer
Brochures

Overview

Kirsten is head of the Financial Services Regulatory practice in our Johannesburg office. She specialises in banking and financial services regulatory law and has practiced in this field for the firm’s account since 2006.

Kirsten has over 16 years of experience and expertise in all aspects of banking, financial services and investment management regulatory law, and regularly advises clients, both local and foreign, on the content and implications of the National Credit Act, 2005, the Financial Advisory and Intermediary Services Act, 2002, the Collective Investment Schemes Control Act, 2002, the National Payment Systems Act, 1998, the Banks Act, 1990, the Financial Intelligence Centre Act, 2001, the Financial Markets Act, 2012, the Insurance Act, 2017, the Electronic Communications and Transactions Act, 2002 and the Consumer Protection Act, 2008.  Kirsten also advises clients on the Financial Sector Regulation Act, 2017 (South Africa’s primary “Twin Peaks” regulation), as well as on the Conduct of Financial Institutions Bill and its implications for the future of the South African financial services landscape under the ‘Twin Peaks’ model of regulation.

She has strong contacts with the various regulatory bodies and agencies operative under the Acts on which she advises and she regularly engages on behalf of clients with the National Credit Regulator, the Financial Sector Conduct Authority, the South African Reserve Bank, the Prudential Authority, the Financial Intelligence Centre and the National Consumer Commission.

Kirsten regularly advises top-tier local and foreign clients including financial service providers and asset managers, fund managers, payment services providers, fintech service providers, banking institutions, credit providers and credit bureaux with applications for regulatory registration, licensing, authorisation, approval and exemptions.  In addition to registration, licensing, authorisation and approval requirements, Kirsten assists clients with ongoing compliance and regulatory enforcement matters, and with product structuring, distribution and marketing in compliance with  applicable legislation.

Experience

  • Advised and assisted various entities, local and foreign, to obtain authorisation or exemptions (where relevant) from the Financial Sector Conduct Authority in accordance with the requirement to be licensed as a financial service provider in terms of the Financial Advisory and Intermediary Services Act, 2002.
  • Advised and assisted foreign entities to establish a local presence in South Africa and to obtain the necessary authorisation / licensing from the National Credit Regulator in accordance with the National Credit Act, 2005.
  • Advised a leading South African bank on capital adequacy requirements and their application to its Pan-African subsidiaries.
  • Advised a South African bank in relation to its intention to acquire an African subsidiary in compliance with the Banks Act, 1990.
  • Advised Capitec Bank Limited in relation to its proposed acquisition of Mercantile Bank Limited.
  • Regularly advises Credit Suisse AG (Switzerland), Morgan Stanley, J.P. Morgan, Bank of America, N.A., Bank of New York Mellon, Standard Chartered Bank, Nomura International PLC, Nomura Asset Management, Nomura International PLC, T. Rowe Price International Ltd, The Standard Bank of South Africa, Capitec Bank Limited and countless other clients regarding all aspects of South African banking and financial services regulation.
  • Established Clearscore Pty Ltd in South Africa from scratch in 2017 and continues to regularly advise ClearScore and other entities regulated in terms of the National Credit Act, 2005, regarding ongoing compliance obligations and the making of submissions to the National Credit Regulator.
  • Advised WiGroup Proprietary Limited on the regulatory implications of a mobile application which facilitates peer-to-peer money transfers.
  • Advised AirBnB Payments UK Limited on its proposed offering of peer-to-peer payment capabilities in South Africa
  • Advised WhatsApp on proposed payments services in South Africa.
  • Advised Mastercard on a host of broad payments-related matters from a regulatory and legal perspective.
  • Acted as African counsel for Validus Holdings in its acquisition of Flagstone Reinsurance Holdings RSA, a New York Stock Exchange listed entity, and specifically in relation to Flagstone’s subsidiary, Flagstone Reinsurance Africa Limited, a South African-domiciled short-term insurer.
  • Advised Midbrook Lane Pty Ltd, Riskowitz Value Fund, Protea Asset Management LLC and Khrom Investments Fund, LP regarding the acquisition of increased indirect shareholding in three registered insurers forming part of the Constantia Group
  • Advised Alexander Forbes Group Holdings on its dual track M&A and ZAR 9.8 billion IPO process, which resulted in Alexander Forbes Group Holdings listing on the JSE. After announcing its intention to float, the company launched an offer for subscription and a concurrent offer for sale by existing shareholders.

Awards

  • Chambers and Partners ranked Kirsten in Band 3 for FinTech Legal for five consecutive years (2020-2024).
  • Who’s Who Legal: Banking (Regulatory) named Kirsten as a Leading Lawyer – South Africa for years 2017, 2018, 2020, 2021, 2022 and 2023).
  • Who’s Who Legal: Fintech named Kirsten as a Leading Lawyer – South Africa for years 2018 to 2022 (2023 inclusion confirmation pending).

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