| (1) |
An insider who knows that he or she has inside information and who— |
| (a) |
deals directly or indirectly or through an agent, for his or her own account in the securities listed on a regulated market to which the inside information relates or which are likely to be affected by it; |
| (b) |
makes a profit or would have made a profit if he or she had sold the securities at any stage, or avoids a loss, through such dealing; and |
| (c) |
fails to prove, on a balance of probabilities, any one of the defences set out in section 73(1)(b), |
is liable, at the suit of the board in any court of competent jurisdiction, to pay to the board—
| (i) |
the equivalent of the profit or loss referred to in paragraph (b); |
| (ii) |
a penalty, for compensatory and punitive purposes, in a sum determined in the discretion of the court but not exceeding three times the amount referred to in paragraph (i); |
| (iv) |
costs of suit on such scale as may be determined by the court. |
| (2) |
An insider who knows that he or she has inside information and who— |
| (a) |
deals, directly or indirectly, for any other person in the securities listed on a regulated market to which the inside information relates or which are likely to be affected by it; |
| (b) |
makes a profit for that other person or would have made a profit if the securities had been sold at any stage, or avoids a loss, through such dealing; and |
| (c) |
fails to prove any one of the defences set out in section 73(2)(b), on a balance of probabilities, |
is, subject to subsection (5), liable, at the suit of the board in any court of competent jurisdiction, to pay to the board—
| (i) |
the equivalent of the profit or loss referred to in paragraph (b); |
| (ii) |
a penalty, for compensatory and punitive purposes, in a sum determined in the discretion of the court but not exceeding three times the amount referred to in paragraph (i); |
| (iv) |
the commission or consideration received for such dealing; and |
| (v) |
cost of suit on such scale as may be determined by the court. |
| (3) |
An insider who knows that he or she has inside information and who— |
| (a) |
discloses the inside information to any other person; and |
| (b) |
fails to prove on a balance of probabilities the defence set out in section 73 (3)(b), |
is, subject to subsection (5), liable, at the suit of the board in any court of competent jurisdiction, to pay to the board—
| (i) |
if the other person dealt in the securities listed on a regulated market to which the inside information relates or which are likely to be affected by it, the equivalent of the profit which the person made or would have made if the securities had been sold at any stage, or the equivalent of the loss avoided, as a result of such dealing; |
| (ii) |
a penalty, for compensatory and punitive purposes, in a sum determined in the discretion of the court but not exceeding three times the amount referred to in paragraph (i); |
| (iv) |
the commission or consideration received for such disclosure; and |
| (v) |
cost of suit on such scale as may be determined by the court. |
| (4) |
An insider who knows that he or she has inside information and who encourages or causes any other person to deal in the securities listed on a regulated market to which the inside information relates or which are likely to be affected by it is, subject to subsection (5), liable, at the suit of the board in any court of competent jurisdiction, to pay to the board— |
| (a) |
if the other person dealt in such securities, the equivalent of the profit which the person made or would have made if the securities had been sold at any stage, or the equivalent of the loss avoided, as a result of such dealing; |
| (b) |
a penalty, for compensatory and punitive purposes, in a sum determined in the discretion of the court but not exceeding three times the amount referred to in paragraph (a); |
| (d) |
the commission or consideration received for such encouragement; and |
| (e) |
cost of suit on such scale as may be determined by the court. |
| (5) |
If the other person referred to in subsections (2), (3) and (4) is liable as an insider in terms of subsection (1), the insider referred to in subsections (2), (3) and (4) is jointly and severally liable together with that other person to pay the amounts set out in subsection (2)(i), (iii) and (v), (3)(i), (iii) and (v), or (4)(a),( c) and (d), as the case may be. |
| (6) |
The profit made, or the profit that would have been made if the listed securities had been sold at any stage, or the loss avoided, is determined in the discretion of the court which must have regard to factors such as the consideration for the dealing referred to in subsections (2), (3) and (4), the time between the relevant dealing and the publication of the inside information and any other relevant factors. |
| (7) |
Any amount recovered by the board as a result of the proceedings contemplated in this section or as a result of an agreement of settlement must be deposited by the board directly into a specially designated trust account and— |
| (a) |
the board 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 (8) and an additional sum equal to 10% of the gross amount so recovered less any amount of costs actually recovered from the other party prior to the finalisation of the distribution account; |
| (b) |
the balance, if any, must be distributed by the claims officer to the claimants referred to in subsection (8) in accordance with subsection (9); |
| (c) |
any amount not paid out in terms of paragraph (b) accrues to the board. |
| (8) |
The balance referred to in subsection (7)(b) must be distributed to all claimants who— |
| (a) |
submit claims to the directorate within 90 days from the date of publication of a notice in two national newspapers inviting persons who are affected by the dealings referred to in subsections (1) to (4) to submit their claims; and |
| (b) |
prove to the reasonable satisfaction of the claims officer that— |
| (i) |
they were affected by the dealings referred to in subsections (1) to (4); and |
| (ii) |
in the case where the inside information was made public within five trading days from the time the insider referred to in subsections (1) and (2), or the other person referred to in subsections (3) and (4) 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). |
| (9) |
Subject to subsection (10), 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 court or a settlement, that the claimant would have dealt 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 (7)(b), calculated according to the relationship which the amount contemplated in paragraph (a) bears to all amounts proved in terms of subsection (8) 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.
| (10) |
An amount awarded in proceedings contemplated in section 85 must be deducted from any amount claimed in terms of this section. |
| (11) |
The common law principles of vicarious liability apply to the civil liability established by this section. |
Housing Development Agency Act, 2008
