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Collective Investment Schemes Control Act, 2002 (Act No. 45 of 2002)

Part XII : General

109. Liability for loss

 

(1)
(a) A person who contravenes or fails to comply with any provision of this Act or any rule or directive of an association, or regulation, notice or directive under this Act is liable to any other person for any loss or damage suffered by that person as a result of such contravention or failure.
(b) The defences applying to an action for damages in respect of a breach of a statutory duty are available to any defendant in an action contemplated in paragraph (a).

 

(2) A person who contravenes a provision of section 106 or 107 is liable to pay damages to any other person who, by dealing in or purchasing a participatory interest, suffers a loss as a result of the difference between the price at which the dealing takes place and the price at which it is likely to have taken place if the contravention had not occurred.

 

(3) The amount of damages for which a person is liable in terms of subsection (2) is limited to twice the profit gained or likely to be gained, or loss avoided or likely to be avoided, by him or her as a result of the relevant contravention.

 

(4) An action contemplated in subsection (1) or (2) does not lie after the expiration of a period of three years commencing—
(a) in a case contemplated in subsection (1), on the day of the relevant contravention or failure; or
(b) in a case contemplated in subsection (2), on the day of completion of the dealing in which the loss occurred.

 

(5) The registrar may bring an action in a competent court in the name of, and for the benefit of, an investor or a specific group of investors for recovery of damages for a loss referred to in subsection (2).

 

(6) Nothing contained in this section affects any liability which a person may incur under the common law or any other law but any damages previously awarded in terms of this section which arise from the same cause must be taken into consideration for purposes of any further claim referred to in this subsection.