| (a) |
the equivalent of the profit that the person, such other person or such insider, as the case may be, made or would have made if he or she had sold the securities at any stage; or the loss avoided, through such dealing; |
| (b) |
an amount of up to R1million, to be adjusted by the Authority annually to reflect the Consumer Price Index, as published by Statistics South Africa, plus three times the amount referred to in paragraph (a); |
| (d) |
cost of suit, including investigation costs, on such scale as determined by the Authority. |
| (2) |
Subject to subsection (3), any person who contravenes section 78(4) or (5) of this Act is liable to pay an administrative sanction not exceeding— |
| (a) |
the equivalent of the profit that such other person made or would have made if he or she had sold the securities at any stage, or the loss avoided, through such dealing, if the recipient of the information, or such other person, as the case may be, dealt directly or indirectly in the securities listed on a regulated market to which the inside information relates or which are likely to be affected by it; |
| (b) |
an amount of up to R1 million, to be adjusted by the Authority annually to reflect the Consumer Price Index, as published by Statistics South Africa, plus three times the amount referred to in paragraph (a); |
| (d) |
cost of suit, including investigation costs, on such scale as determined by the Authority; and |
| (e) |
the commission or consideration received for such disclosure, encouragement or discouragement. |
| (3) |
If the other person referred to in section 78(2), (3), (4) and (5) is liable as an insider in terms of section 78(1), the insider referred to in section 78(2), (3), (4) and (5) is jointly and severally liable together with that other person to pay the amounts set out in subsections (1)(a), (c), (d) and (2)(a), (c) and (d), as the case may be. |
| (4) |
Any amount recovered by the Authority as a result of the proceedings contemplated in this section must be deposited by the Authority directly into a specially designated trust account and— |
| (a) |
the Authority is, as a first charge against the trust account, entitled to reimbursement of all expenses reasonably incurred by it in bringing such proceedings and in administering the distributions made to claimants in terms of subsection (5); |
| (b) |
the balance, if any, must be distributed by the Authority to the claimants referred to in subsection (5) in accordance with subsection (6); |
| (c) |
any amount not paid out in terms of paragraph (b) accrues to the Authority. |
[Section 82(4) substituted by section 290, item 58(b) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice R. 99, GG 41433, dated 9 February 2018)]
| (5) |
The balance referred to in subsection (4)(b) must be distributed to all claimants who— |
| (a) |
submit claims to the Authority within 90 days from the date of publication of a notice in one national newspaper or on the Authority's website inviting persons who are affected by the dealings referred to in section 78(1) to (5) to submit their claims; and |
[Section 82(5)(a) substituted by section 290, item 58(c) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice R. 99, GG 41433, dated 9 February 2018)]
| (b) |
prove to the reasonable satisfaction of the Authority that— |
[Words preceding section 82(5)(b(i) substituted by section 290, item 58(d) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice R. 99, GG 41433, dated 9 February 2018)]
| (i) |
they were affected by the dealings referred to in section 78(1) to (5); and |
| (ii) |
in the case where the inside information was made public within five trading days from the time the insider referred to in section 78(1), (2) and (3), or the other person referred to in section 78(4) and (5) dealt, they dealt in the same securities at the same time or any time after the insider or other person so dealt and before the inside information was made public; or |
| (iii) |
in every other case, they dealt in the same securities at the same time or any time thereafter on the same day as the insider or other person referred to in subparagraph (ii); |
| (iv) |
it would be equitable for their claim to be included in a distribution in terms of subsection (4)(b). |
| (6) |
Subject to subsection (7), a claimant must receive an amount— |
| (a) |
equal to the difference between the price at which the claimant dealt and the price, determined by the Authority, that the claimant would have dealt at if the inside information had been published at the time of dealing; or |
| (b) |
equal to the pro rata portion of the balance referred to in subsection (2)(b), calculated according to the relationship which the amount contemplated in paragraph (a) bears to all amounts proved in terms of subsection (3) by claimants, |
whichever is the lesser, unless the claims officer in his or her discretion determines that the claimant should receive a lesser or no amount.
| (7) |
An amount awarded in proceedings contemplated in section 87 must be deducted from any amount claimed in terms of this section. |
| (8) |
The common law principles of vicarious liability apply to the liability established by this section. |
[Section 82 substituted by section 290, item 58(a) of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice R. 99, GG 41433, dated 9 February 2018)]
National Environmental Management Act, 1998 (107 of 1998)
