ANTI-BRIBERY AND CORRUPTION POLICY

Transcription

1 ANTI-BRIBERY AND CORRUPTION POLICY 1. INTRODUCTION This plicy applies t Kemcre Suth Africa Prprietary Limited and its subsidiaries and assciate cmpanies (cllectively referred t as Kemcre ) are cmmitted t acting prfessinally, fairly and with integrity in all ur business dealings. As part f its cmmitment t ethical business practices, Kemcre will nt tlerate any frm f bribery r crruptin. This Anti-bribery Plicy utlines the behaviur and principles required t supprt this cmmitment. In particular, it utlines Kemcre s plicies and prcedures intended t ensure cmpliance with Suth African Anti-crruptin legislatin, the UK Bribery Act and the varius anti-crruptin laws and regulatins in ur varius cuntries f peratin. Anti-bribery laws and regulatins can be cmplex. This plicy will enable emplyees t recgnise when issues arise; avid prhibited cnduct where the issues are clear, and prmptly seek guidance where they are nt. Relevant emplyees will als be required t attend face-tface anti-crruptin training. 2. POLICY SUMMARY 2.1 All Kemcre emplyees, fficers and directrs, and all thse acting fr r n Kemcre s behalf are strictly prhibited frm ffering, paying, sliciting r accepting bribes r kickbacks, including facilitatin payments. 2.2 The requirements set ut in this plicy apply t Kemcre Suth Africa Prprietary Limited, its whlly wned subsidiaries and jint ventures cntrlled by Kemcre, and all their emplyees, fficers and directrs. Jint ventures where Kemcre desn t have a cntrlling interest will be expected t cmply with this/a cmparable plicy. 2.3 Agents, representatives and intermediaries wh act n behalf f Kemcre, anywhere in the wrld, must cmply with the Kemcre (r relevant perating cmpany) Cde f Cnduct and Business Ethics (Cde f Ethics ) which includes the relevant Anti-bribery prvisins, r a cmparable cde f cnduct (see sectin n Agents, representatives, intermediaries and ther third parties belw fr mre infrmatin). 2.4 Third parties such as suppliers and ther cntractrs are expected t cmply with the Kemcre (r relevant perating cmpany) Cde f Ethics r a cmparable cde f cnduct.

2 2 2.5 Given the serius nature f a breach, an emplyee s failure t cmply with this plicy, whether intentinally r by an act f negligence, may lead t disciplinary actin being taken that culd ultimately result in terminatin f emplyment. 3. RELEVANT LAW Anti-bribery laws exist in mst cuntries arund the wrld. We cncentrate belw n the laws in Suth Africa, the UK and the US, but Kemcre requires cmpliance with the laws f all cuntries which are applicable t yur business and yu shuld seek lcal legal advice where relevant. 3.1 The Preventin and Cmbating f Crrupt Activities Act ( PRECCA ) Under PRECCA, the general crime f crruptin happens when smene ( A ) gives (r ffers t give) smene in a psitin f pwer ( B ) smething t use their pwer, illegally and unfairly, fr the advantage f A (r smene nt directly invlved). Smene wh slicits a bribe is als guilty f crruptin, even if the ffer is turned dwn The act desn t necessarily have t invlve mney exchanging hands. Gifts, entertainment, prperty, emplyment, influence f a vte (fr example in a tender prcess), discunts, r release frm a lan are als viewed as gratificatin, under PRECCA PRECCA prvides fr extraterritrial jurisdictin this means that even if an act f crruptin was cmmitted utside f Suth Africa, a curt in Suth Africa will have jurisdictin ver the ffence, as lng as certain cnditins are met. The persn t be charged must be a Suth African citizen and must rdinarily reside in Suth Africa, r must be a crprate incrprated in Suth Africa PRECCA als requires all peple in psitins f authrity in bth the public and private sectr t reprt crruptin f R r mre, t the plice. Failure t reprt crruptin is a criminal ffence PRECCA impses hefty penalties (fines and prisn terms) fr peple wh are cnvicted f crrupt activities. If cnvicted in the High Curt, the guilty party can receive up t life imprisnment. If cnvicted in a reginal Magistrates curt, the guilty party can receive a sentence f up t 18 years in prisn, whilst a prisn sentence f up t five years can be impsed if cnvicted in the District Magistrates Curt. 3.2 UK Bribery Act Under the UK Bribery Act it is an ffence fr a persn t ffer, prmise r give mney, gifts r anything f value t anther persn, r t request r receive the same frm anther persn, as an inducement r reward fr perfrming a functin imprperly r where the acceptance r receipt wuld itself be imprper Any frm f gift, cnsideratin, reward r advantage can cnstitute a bribe it need nt be an ffer f mney. This general law criminalises the ffering f bribes t persns

3 3 in bth the public and private sectr, i.e. it is nt cnfined t the crruptin f gvernment fficials The Act als cntains a specific ffence fr the bribing f freign public fficials (see further belw fr examples f public fficials). A prsecutr des nt need t shw imprpriety, nly that it was the ffender s intentin t influence the public fficial in rder t btain r retain business r a business advantage The Bribery Act applies t any ffences taking place in the UK, but als t ffences taking place whlly utside the UK where they are cmmitted by British citizens, UK residents r bdies incrprated in the UK, even in sme cases where they are custmary lcally r permitted under lcal law The Act als intrduces a new crprate ffence which impses criminal liability n any cmpany incrprated in the UK r which carries n part f its business in the UK (including, fr example, a freign crprate with nly a branch ffice in the UK) fr failure t prevent bribery by anyne prviding services fr r n behalf f the cmpany. This may include emplyees, agents, representatives, intermediaries, subsidiaries and jint ventures A cmpany will nt be guilty f the crprate ffence if it can demnstrate that it has adequate prcedures in place t prevent such persns and entities frm cmmitting bribery. This Anti-bribery Plicy frms part f Kemcre s adequate prcedures Individuals wh cmmit bribery can be subject t up t ten years imprisnment and/r unlimited fines. Cmpanies that cmmit an ffence may als face significant fines, cnfiscatin f the benefits f any tainted cntract and debarment frm tendering fr public prcurement wrk and ther gvernment cntracts. 3.3 The US Freign Crrupt Practices Act (FCPA) The FCPA prhibits the giving r ffering f mney, gifts r anything f value t any freign gvernment fficial fr the purpse f influencing the freign fficial r party, r inducing the freign fficial r party t exert influence t assist the cmpany in btaining r retaining business The law applies t US citizens, permanent residents and US cmpanies, r any persn acting n their behalf, as well as t nn-us individuals and cmpanies wh breach the rules in a manner that is deemed t have sufficient cnnectin with the US. The US gvernment has stated its view that the FCPA can apply t a transactin with nly very limited cnnectin t the US, e.g. where a nn-us individual/cmpany uses US cmmunicatins r banking netwrks in cnnectin with a vilatin The FCPA als impses internal cntrl, and accunting and recrd-keeping prvisins. Crpratins wh vilate the FCPA face significant fines. Individuals face ptential fines and imprisnment fr up t five years under the anti-bribery prvisin and up t 20 years under the accunting prvisin.

4 4 4. WHAT IS BRIBERY? 4.1 Bribery usually invlves giving r ffering mney, a gift r smething else f value t smene in business r gvernment in rder t btain r retain a cmmercial advantage r t induce r reward the recipient fr acting imprperly r where it wuld be imprper fr the recipient t accept the benefit. Bribery can als take place where the ffer r giving f a bribe is made by r thrugh a third party, i.e. an agent, representative r intermediary. 4.2 Bth the giving and receiving f bribes is prhibited in mst jurisdictins. Bribes ften invlve mnetary payments (r the prmise f payments), but can include ther benefits r advantages. Fr example, bribes culd include: lavish gifts, entertainment r travel expenses, particularly where they are disprprtinate, frequent r prvided in the cntext f nging business negtiatins; cash payments by emplyees r third persns such as cnsrtium members, intrducers r cnsultants; the uncmpensated use f cmpany services, facilities r prperty; lans, lan guarantees r ther extensins f credit; prviding a subcntract t a persn cnnected t smene invlved in awarding the main cntract; engaging a lcal cmpany wned by r ffering an educatinal schlarship t a member f the family f a ptential custmer/public r gvernment fficial; plitical r charitable dnatins made t a third party linked t, r at the request f, smene with whm Kemcre des business; and benefits such as the prvisin f an internship r wrk experience, whether paid r unpaid. 4.3 Facilitatin payments are small payments r fees requested by gvernment fficials t speed up r facilitate the perfrmance f rutine gvernment actin (such as the prvisin f a visa r custms clearance). In sme cuntries it may be cnsidered nrmal practice t make such payments, but they are ften nnetheless illegal in thse same cuntries. 5. KEMCORE POLICIES AND PROCEDURES: 5.1 Facilitatin payments The Kemcre Anti-bribery Plicy des nt permit facilitatin payments. Any request fr a facilitatin payment made f an Kemcre emplyee r representative shuld be reprted t yur line manager r Anti-bribery and Crruptin Officer (ABC Officer) There may be very exceptinal circumstances where a facilitatin payment is unavidable (e.g. because f a threat t, r therwise the impact n, an individual s

5 5 persnal wellbeing r safety). Any such payments must immediately be brught t the attentin f yur line manager r ABC Officer and must be prperly accunted fr. 5.2 Gifts and hspitality The exchange r prvisin f mdest gifts and hspitality may fster gdwill in business relatinships. Hwever, they must be strictly limited in value and frequency, in keeping with custmary business practice and in accrdance with all applicable laws. Emplyees must nt request, accept, ffer r prvide gifts r hspitality designed t induce, supprt r reward imprper cnduct including in cnnectin with any business r anticipated future business invlving Kemcre: fr example, where they might be seen t cmprmise the receiver s judgement and integrity. This requirement extends t the prvisin r acceptance f gifts r hspitality thrugh any third parties r t r by members f the family f an emplyee f an actual r a ptential custmer. In additin, emplyees must nt prvide gifts, hspitality r any ther advantages t ptential custmers r gvernment fficials at their wn expense What cnstitutes a gift r hspitality fr the purpses f this plicy? Anything f value a nn-exhaustive list wuld include tickets t a sprting/cultural event, gift certificates, prizes, discunts, lans, travel expenses, stcks r ther securities and use f facilities e.g. a hliday hme When are gifts r hspitality acceptable? Yu shuld use yur wn judgement t assess what is acceptable, taking accunt f this plicy and the requirements fr apprval belw Mdest gifts and hspitality may usually be ffered r accepted prvided there is n expectatin r belief that smething will be given in return. Mdest gifts and hspitality may include: small gifts, including gifts f nminal value such as calendars, diaries, pens and ther small prmtinal items such as samples; ccasinal mdest meals with peple with whm yu cnduct business; ccasinal attendance at mdest entertainment events, e.g. a musical perfrmance, the theatre r a mdest sprting event; r necessary and reasnable travel and accmmdatin expenses in cnnectin with legitimate business trips Where gifts r hspitality d nt fit int the abve categries, r yu are nt sure whether they if it r are therwise apprpriate, yu must seek prir apprval frm yur line manager r the ABC Officer befre ffering r accepting the gift r hspitality.

6 G&H threshlds and prir apprval Yu must always seek prir apprval fr: any specific gift whse value exceeds 50*; r entertainment / hspitality (e.g. a meal, invitatin t a shw r sprting event, business trip expenses r a cmbinatin f these activities) that exceeds 100* per event. * Please refer t the apprved Budget Exchange Rate issued by Kemcre Grup Finance frm time t time fr the ZAR r equivalent currency applicable t yur cuntry f peratin G&H nt requiring apprval Fr the avidance f dubt, the fllwing will nt require apprval: branded prmtinal prducts f nminal value (e.g. pens, calendars, t-shirts); r cmmn curtesies such as drinks, sandwiches r mdest refreshments prvided at Kemcre s r a third party s premises in cnnectin with a legitimate business meeting Additinal cnsideratins As well as cnsidering the prprtinality and intent behind the prpsed gift r hspitality, yu shuld als cnsider the frequency and apprpriateness f timing. Relatively mdest gifts and hspitality that are given/received frequently r, fr example, during a cntract negtiatin perid culd be perceived as inapprpriate. Therefre, even where a particular prpsal des nt exceed the apprval threshld, yu must satisfy yurself that it is nt apprpriate r prudent t seek apprval and line managers will als bear such factrs in mind when apprving expenses If yu are the recipient f an unexpected gift r hspitality that appears t exceed the apprval limits, yu must declare the item t yur line manager r the ABC Officer after the event. In respect f a gift, yu may be required t return it, surrender it t Kemcre r give it t charity if it is nt cnsidered apprpriate t retain it All gifts and hspitality which require apprval will be fully dcumented in the lcal gifts and hspitality register Outward gifts and hspitality that are belw the apprval threshlds will be subject t the usual expenses apprval prcesses and will nt be apprved if the relevant apprver cnsiders the expense t have been inapprpriate. Such an instance will be reprted t the ABC Officer

7 The register and the expenses prcess will be subject t regular review by internal audit. Such review f the register will include mnitring nt nly the value f individual gifts and hspitality, but als the frequency and aggregate value f gifts and hspitality ffered/received by particular individuals/cmpanies Specifically Prhibited G&H There are certain cases where gifts and hspitality are never acceptable, namely: gifts f cash r equivalents (e.g. gift certificates, lans, shares r share ptins); gifts and hspitality that are indecent, inapprpriate r wuld damage KEMCORE s integrity r reputatin; gifts and hspitality that breach any lcal law r regulatin; and gifts and hspitality that the recipient is nt permitted t receive by their emplyer/principal If there is any rm fr dubt in this regard, written ntice f the intentin t make the gift r ffer the entertainment/hspitality shuld be given t the recipient r the recipient s emplyer/principal t enable them t advise in advance if acceptance by the recipient wuld cntravene any applicable plicies/lcal law Please nte that special cnsideratins apply where yu intend t ffer a gift r hspitality t a public r gvernment emplyee r fficial. Other than the nminal exemptins fr lw-value branded prmtinal prducts and mdest refreshments at Kemcre s r a third party s premises referred t abve, yu will always require prir apprval frm yur lcal ABC Officer and registratin fr gifts and hspitality which are ffered t gvernment fficials (please see sectin n dealing with gvernments belw) Yur lcal ABC Officer will be able t advise yu f any relevant lcal variatins t the plicy, fr example in respect f custmary gifts which are lawful and d nt give rise t a perceptin f bribery r crruptin Further guidance n gifts, entertainment, hspitality and hsting is cntained in the prcess slides fr giving and receiving gifts, entertainment and hspitality and relevant apprval frms, tgether with the Apprval Principles fr Gifts, Entertainment r Hspitality which are available frm the Human Resurces Department.

8 8 6. AGENTS, REPRESENTATIVES, INTERMEDIARIES AND OTHER THIRD PARTIES Kemcre culd be held criminally liable fr the acts f agents, representatives and ther intermediaries wh are invlved in bribery when they are acting n its behalf Befre engaging a third party yu shuld cnsider whether the use f such a persn is necessary; whether the prpsed persn is apprpriate fr the rle (including by reference t their expertise and any pssible cnflict f interest); and whether the prpsed remuneratin is apprpriate Agents, representatives and intermediaries engaged t represent Kemcre s interests must cmply with the Kemcre (r relevant perating cmpany) Cde f Cnduct and Business Ethics, including relevant Anti-bribery prvisins Managers are respnsible fr ensuring that Kemcre s expectatins in this regard are cmmunicated t and fllwed by such persns/entities, and that apprpriate cntractual prtectins and safeguards are in place where necessary (standard Anti-bribery wrding fr representative agreements is available frm yur in-huse legal team) Thrugh due diligence needs t be undertaken befre engaging any agent, representative r intermediary, which may include cmmissining third-party risk assessments in high-risk areas. In particular yu need t find ut wh they are (including details f the ultimate wners f any cmpany); what their business histry is (including whether there has ever been any allegatin r reprt f their invlvement in any wrngful business cnduct); and fr whm they have previusly wrked. Apprpriate references must always be btained Business units shall be respnsible fr ensuring that cmmissin and ther payments t any agents, representatives r intermediaries under an apprved intermediary (r equivalent) agreement are prperly recrded, apprved and paid in accrdance with the agreement and any ther legal requirements All payments t an agent, representative r intermediary must be made by direct bank transfer (nt t any third party) int the cuntry in which the agent, representative r intermediary has its principal place f business r perfrms substantial services n behalf f Kemcre. Any request fr payment t a third party f a cmmissin, service fee r ther fees in a manner that is nt in accrdance with this plicy must be apprved by the ABC Officer. 7. DEALING WITH GOVERNMENTS 7.1 Althugh many cuntries punish bth public and private sectr bribery and crruptin, the rules applicable t the public sectr tend t be stricter. While the principles f this plicy apply t dealings acrss bth the public and private sectrs, particular care is required in relatin t any dealings with gvernments, gvernment agencies, r gvernment wned r cntrlled businesses, particularly where a cntract is already held with the relevant gvernment r gvernment entity and/r yu are pitching fr business frm that gvernment r gvernment entity.

9 9 7.2 Kemcre prhibits the prvisin f mney, gifts, entertainment r anything else f value t any gvernment r public fficials fr the purpse f influencing such fficials in rder t btain r retain business r a business r cmmercial advantage, r therwise in relatin t decisins that may be seen as beneficial t Kemcre s business interests. 7.3 Apprval frm the ABC Officer is required prir t ffering a gift r hspitality t any gvernment r public fficials including in relatin t hspitality t any gvernment r public fficials including in relatin t: paying r reimbursing travel, hspitality r entertainment expenses (e.g. Airfares, meals r htel bills); making gifts; and making charitable cntributins. 7.4 All gifts and hspitality t gvernment and public fficials, ther than nminal exceptins referred t in the gifts and hspitality sectin shuld als be entered n the lcal gifts and hspitality register Examples f gvernment and public fficials include: anyne hlding a legislative, administrative r judicial psitin, including gvernment ministers, elected representatives f natinal, reginal r lcal assemblies, fficials f a plitical party, civil servants, magistrates r judges; an emplyee, fficer, agent r ther persn acting in an fficial capacity fr a gvernment, gvernment department, gvernment r public agency, public enterprise, r cmmercial enterprise wned in whle r in part by a gvernment; and an emplyee, fficer, agent r persn acting in an fficial capacity fr a public internatinal rganisatin, such as the Wrld Bank, United Natins r the Eurpean Cmmissin. 8. POLITICAL DONATIONS It is the plicy f Kemcre nt t make any plitical dnatins as an rganisatin. Emplyees may chse t make payments frm their wn mney, but nt with a view t influence a third party fr the benefit f Kemcre r in any way that might give the impressin that such influence was intended 9. CHARITABLE DONATIONS Kemcre believes in cntributing t the cmmunities in which it des business and permits reasnable dnatins t charities frm Kemcre funds. Hwever, Kemcre must be certain that charitable dnatins cannt be viewed as an attempt t buy influence fr the benefit f Kemcre r in any ther way as being imprper, and n a wrst case basis are nt disguised unlawful payments t private individuals r public fficials in vilatin f anti-crruptin laws.

10 10 Care shuld be taken t ensure that charity is legitimate and that any dnatin is nt diverted t ther beneficiaries. N charitable dnatin shuld therefre be made r agreed withut first referring t yur lcal ABC Officer fr apprval. 10. INTERNSHIPS/WORK EXPERIENCE The prvisin f an internship r wrk experience, whether paid r unpaid, may be viewed as a benefit (and ptentially an imprper ne) t a third party. N ffer shuld be made f any internship r wrk experience, withut first seeking apprval frm yur Human Resurces department. Any requests yu receive fr internships r wrk experience shuld be passed t yur Human Resurces department. 11. COMPLIANCE AND OVERSIGHT Every Kemcre emplyee is respnsible fr cmpliance with this plicy. Respnsibility fr versight f the plicy and its enfrcement has been assigned t the ABC Officer at each Kemcre subsidiary/business unit, with the assistance f the in-huse legal team. Ultimate respnsibility fr the plicy is taken by the Kemcre ABC Officer. Adherence t the plicy will be subject t regular review by internal audit. Kemcre will als prvide regular training fr relevant emplyees regarding this plicy and general cmpliance with anti-bribery bligatins. All new emplyees whse day-t-day activities may be affected by this plicy will receive apprpriate training within a reasnable time after cmmencing emplyment and will acknwledge that they have received a cpy f this plicy and will cmply with the plicy and all assciated laws and prcedures. 12. REPORTING ISSUES INTERNALLY All Kemcre emplyees are required t assist in tackling fraud, crruptin and ther malpractice within the rganisatin. If yu are aware f, r suspect that bribery may be taking place within Kemcre, yu shuld reprt yur suspicins t an apprpriate persn (which will usually be yur lcal ABC Officer). If yu are in dubt that yur cncerns have been r will be dealt with prperly, yu shuld raise the matter directly with any senir cmpany fficer r ne f the cntacts prvided thrugh yur perating cmpany whistleblwing prcedures r the Kemcre Whistleblwing Plicy (details f which are set ut n the Kemcre intranet at This will enable Kemcre t investigate swiftly. It will nt nrmally be apprpriate t disclse yur cncerns utside the cmpany r t a third party befre Kemcre has had a chance t deal with the issue. If yu ask fr yur identity t be prtected, Kemcre will d its best t ensure this. N emplyee will ever suffer if Kemcre lses business as a result f his/her decisin nt t pay bribes r engage in crrupt activities. In additin, if yu genuinely believe that there is sme frm f malpractice ccurring and raise a cncern in gd faith and withut malicius intent, Kemcre

11 11 will ensure that yu d nt suffer any disadvantage in the wrkplace as a result f speaking up, whatever the utcme f the investigatin. 13. INVESTIGATIONS In additin t regular audits t verify cmpliance with relevant anti-crruptin laws and mre bradly with this and ther Kemcre plicies, practices and prcedures, there may be individual instances in which Kemcre wishes t investigate a specific issue r allegatin. In these events, an audit r investigatin f recrds, bks and accunts may be perfrmed t prevent and detect vilatins f anti-crruptin laws and prcedures and t ensure cmpliance with this plicy and ther Kemcre plicies, practices, and prcedures. While perfrming such an audit r investigatin, the investigating team may seek the assistance f any Kemcre persnnel, and is authrised t retain accunting firms, external lawyers, r thers, as deemed apprpriate at the discretin f the investigating team. All persnnel have a duty t cmply with such requests fr assistance.