1.1. The Newlyn Group and all its associated entities (collectively referred to as the Company) are committed to doing business in accordance with applicable laws and upholding the highest standards of ethics.
1.2. The Company recognises the devastating effects bribery, corruption and anti-competitive practices have on society as a whole and its adverse effect on the economic development of South Africa and Africa. The Company further recognises the moral and legal dilemmas which arise when doing business and is cognisant of its role in combatting bribery, corruption and anti-competitive practices. To this end, this document sets out the Company’s policy to combat bribery, corruption and anti-competitive practices.
1.3. The Company adopts a zero-tolerance approach to non-compliance with this policy and will strictly enforce and impose sanctions on any such non-compliance.
1.4. This policy will be reviewed in line with prevailing legislation and on an ad-hoc basis in response to an event or change in circumstances.
2. PURPOSE
2.1. The purpose of this policy is to assist with identifying when something is prohibited, to provide a clear guideline on expected conduct to ensure compliance with applicable laws, inform everyone to whom this policy applies of the Company’s position in relation to bribery, corruption and anti-competitive practices and to create and enable an ethical culture.
2.2. The relevant laws which are applicable to this policy include the:
2.2.1. Competition Act 89 of 1998;
2.2.2. Financial Intelligence Centre Act 38 of 2001;
2.2.3. Prevention and Combatting of Corrupt Activities Act 12 of 2004 (PRECCA);
2.2.4. Prevention of Organised Crime Act 121 of 1998;
2.2.5. Protected Disclosures Act 26 of 2000; and
2.2.6. Protection of Constitutional Democracy Against Terrorist and Related Activities Act 33 of 2004.
3. APPLICATION
3.1. This policy applies to all directors, prescribed officers, managers, employees including permanent, fixed-term and casual employees (collectively, the Employees), interns, and third parties including suppliers, contractors, business partners, investors, vendors, agents, consultants, intermediaries and customers (Third Parties) in their dealings with the Company, fellow employees, interns and Third Parties.
3.2. In the event that any other Company policy conflicts with this policy, then the policy providing the highest level of protection against bribery, corruption, anti-competitive practices or such other prohibited conduct shall prevail, to the extent of such conflict.
4. IMPORTANT DEFINITIONS – WHAT IS BRIBERY, CORRUPTION AND OTHER PROHIBITED ACTS?
4.1. anti-competitive practices are any actions or conduct that restrict, distort or undermine fair competition in the market. Examples include price fixing (where competitors agree to charge the same or similar prices for goods or services), market division (where competitors agree to divide a market to limit competition), bid rigging/collusive tendering (where competitors collude to manipulate bids in tenders or auctions to ensure a predetermined bidder wins), predatory pricing (where a dominant company lowers prices to drive out competitors and then raises prices once competitors have left the market), monopolistic practices (practices which stifles competition to gain or maintain a dominant position in the market) and abuse of dominance (where a dominant company uses its market power to engage in anti-competitive practices that harm consumers or stifle competition).
4.2. Bribery concerns the practice of offering or accepting a form of gratification to gain an illicit advantage and involves at least two persons, the person offering or giving the gratification to secure the illicit advantage (active bribery), and the person accepting the gratification (passive bribery). Both persons are liable to be a criminally prosecuted.
4.3. Corruption is an abuse of a position of trust, or the improper performance of a relevant function or activity in order to gain an undue advantage or for personal gain. Corruption therefore entails offering payments, promises or gifts provided to another with the intention to induce the recipient to misuse his or her official position.
4.4. Financial or other advantage covers anything of value, including cash, gifts services, job offers loans, travel expenses, entertainment or hospitality.
4.5. Facilitation payments are unofficial, improper, small transfers of value offered or made to secure or expedite a routine or necessary action to which the Company is legally entitled.
4.6. Gratification is anything offered or accepted as part of bribery or corruption and can be financial (e.g. donations, loans, cash or shares) or non-financial benefits (e.g. job offers, preferential treatment, rewards, honour, hospitality) and can be made either directly or indirectly (e.g. through a third party).
4.7. Public official may include (depending on applicable legislation and whether they are a foreign or local public official):
4.7.1. an officer or employee of a government or public agency, entity or public enterprise or anyone acting in an official capacity or exercising a public function on such persons’ behalf;
4.7.2. any person who holds a legislative, executive, administrative or judicial position of any kind whether appointed or elected;
4.7.3. an official, employee or agent of a public international organisation (e.g., the World Bank, the International Monetary Fund, the World Trade Organisation and the United Nations);
4.7.4. any political party, party official or candidate for political office;
4.7.5. any officers, employees, representatives or agents of any entity or corporation owned or controlled directly or indirectly by a government;
4.7.6. any person employed by a board, commission, corporation or other body or authority that performs a function on behalf a state (whether local or foreign);
4.7.7. any head or member of a diplomatic mission or consular post; or
4.7.8. any person receiving remuneration from public funds.
5. RELEVANCE OF THIS POLICY
5.1. Bribery, corruption and anti-competitive practices are illegal, and any contravention of applicable law may result in imprisonment, a fine, or both.
5.2. Internationally, private sector companies are obliged to comply with certain obligations to combat bribery, corruption and anti-competitive practices. The Company is committed to conducting business ethically and in compliance with the law. All Employees, interns and Third Parties are required adopt a cautious approach in furtherance of these commitments.
6. STANDARDS OF EXPECTED CONDUCT
6.1. General
6.1.1. It is the Company’s policy to conduct all of its business in an honest and ethical manner. A zero-tolerance approach is applied to all forms of bribery and corruption. The Company is committed to acting professionally, fairly and with integrity in all its business dealings and relationships and implementing and enforcing effective systems to counter bribery and corruption.
6.1.2. The Company does not, directly or through a third party, promise, offer, make, authorise, solicit or accept any financial or other advantage, to or from anyone to obtain or retain business, or secure an improper advantage in the conduct of business. Personal funds cannot be used to circumvent this policy, and all facilitation payments are prohibited.
6.1.3. The Company does not engage in anti-competitive practices and no Employee may participate in any anti-competitive practices.
6.1.4. All Employees, interns and Third Parties must comply with this policy and are expected to comply with applicable laws, specifically the legislation outlined in paragraph 2.2 above.
6.2. Third Party due diligence and approval process
6.2.1. The Company operates in the property industry, ownership, development and leasing thereof and regularly interfaces with Third Parties throughout the value chain. The Company enters into contracts with both private and public entities. The Company adopts a proactive approach to ensuring that it knows who it is contracting with and its intention is to incorporate safeguards into its contractual agreements that prevent bribery and corruption.
6.2.2. The Company will engage with Third Parties to ensure that this policy is complied with and observed at all times. It is the responsibility of Employees to ensure that this policy and the provisions of this paragraph 6.2 are complied with and to report any non-compliance in accordance with the available reporting mechanisms (see paragraph 7).
6.2.3. All contracts with Third Parties regardless of the value thereof will henceforth contain anti-bribery and anti-corruption representations and warranties. In the event that the Company is entering into a contract which is a standard form contract or is of such a nature that the contract cannot be amended, then a separate document entitled “Anti-Bribery and Anti-Corruption Representations and Warranties” must be signed by the relevant Third Party and stored on the Company’s electronic database.
6.2.4. Due to the many suppliers the Company engages with, all contracts are to be subjected to a special approval process for Third Parties which requires:
6.2.4.1. Obtaining written approval/sign off by a senior manager to enter into the contract; and
6.2.4.2. Within 14 business days after signature of the contract the relevant Employee must –
6.2.4.2.1. establish and verify the identity of the Third Party by confirming that the entity is duly incorporated, for example by performing a search on the BizPortal website (https://bizportal.gov.za/default.aspx);
6.2.4.2.2. ensure that the individual contracting on behalf of an entity is authorised to do so; and
6.2.4.2.3. assess whether any counterparty may be high risk by virtue of negative media (such as media reports relating to allegations of bribery or corruption) or due to being affiliated with or owned by public officials.
6.2.5. In the event that an Employee makes a good faith assessment that a counterparty constitutes a high risk, the Employee must report such assessment to their immediate superior who shall be required to consult with the Chief Operating Officer (or her nominee) in relation to further verification and due diligence steps to be taken in relation to such counterparty.
6.2.6. The Company reserves the right to conduct ongoing due diligence in relation to Third Parties and on an ad-hoc basis.
6.3. Dealing with Suppliers
6.3.1. Sourcing and purchasing decisions for the Company must be made with uncompromised integrity, honesty, independence and objectivity of judgment.
6.3.2. The most technically efficient, competitive, cost-effective and appropriate goods and services must be procured and evaluated in accordance with the Company’s procurement policy.
6.3.3. Third Parties’ background, experience, track record and reputation in providing the services being procured for must be verified. The Company will endeavour not to enter into contracts with Third Parties who are known or reasonably suspected to be prone to bribery and corruption.
6.3.4. Employees must not accept any financial or other advantage, facilitation payments or gratification that could influence, or be perceived to influence, their sourcing and purchasing decisions.
6.4. Conflict of Interests
6.4.1. A conflict of interest is when an Employee has an undisclosed direct or indirect personal or economic interest in a transaction.
6.4.2. The Company adopts a cautious approach to avoid situations in which personal interests or actions could conflict or appear to conflict with the best interests of the Company.
6.4.3. All conflicts of interest must be promptly disclosed to the Company. Employees are required to not only disclose actual conflicts of interest but also perceived conflicts of interest to the Company by reporting such conflict in writing to the Human Resources department.
6.4.4. Employees must never:
6.4.4.1. act in a way which advances any interest or person above the best interests of the Company; or
6.4.4.2. engage in situations in which their personal, family or financial interest may conflict with those of the Company; or
6.4.4.3. create the impression that Third Parties have a contact inside the Company which can exert influence on their behalf.
6.4.5. Examples of when conflicts of interest can arise include:
6.4.5.1. when the interest may result in an individual benefitting at the expense of the Company;
6.4.5.2. where an Employee or an Employee’s family member (individuals related to directly, through marriage or similar forms of partnership) or an Employee’s close associate (individuals who are closely connected to an Employee either socially or professionally) is employed by or holds an ownership interest in the counterparty to the transaction;
6.4.5.3. when an Employee accepts a financial or other advantage, facilitation payments or gratification; or
6.4.5.4. when an Employee engages in unapproved employment discussions with current or prospective contractors or suppliers.
6.5. Entertainment, Gifts and Gratuities
6.5.1. Exchanging courtesies such as modest gifts, meals and entertainment, is a common business practice meant to create goodwill and establish trust in business relationships. The occasional exchange of entertainment and gifts of nominal value may be appropriate, as long as such courtesies are not specifically intended to influence any procurement or sales decisions. Moderation and the employee’s good judgment are important in exchanging courtesies. Where there is the potential for doubt, Employees should consult senior management.
6.5.2. Courtesies should be consistent with the business customs and practices of the place where they are offered or received. The Company is obliged to comply with additional restrictions on business courtesies imposed by applicable local and foreign laws, and all such courtesies should be accurately documented and recorded in the Company gift register maintained by the Human Resource department. The following standards are also to be maintained:
6.5.2.1. Any entertainment offered or accepted should occur infrequently, be modest in nature and be a reasonable extension of a business relationship. Acceptance of such entertainment should be reciprocated with similar modest hospitality, which helps employees to avoid any obligation towards the provider of such hospitality. Before offering or accepting any invitations, Employees should first seek approval from their immediate superiors. The term “entertainment” includes, but is not limited to, meals, charitable and sporting events, parties, plays and concerts.
6.5.2.2. When associated with promotional activities simply as gestures of goodwill, gifts of nominal value may be given and accepted. The value of such gifts should, however, not exceed R1,000.00. Gifts of this nature should also be imprinted with a corporate logo and distributed widely as promotional items, for example peak caps and tee shirts. When offered a gift exceeding R1,000.00, Employees must report it promptly to their immediate superior and have it recorded in the gift register maintained by the Company. Under no circumstances will the gift become the property of an Employee unless properly documented in the gift register and properly authorised by the Employee’s immediate superior.
6.5.2.3. When conducting business in other countries and cultures, it is often considered good business manners for Company representatives to give or exchange gifts and failure to do so may be considered a serious breach of etiquette. Only Company representatives who have been authorised for this purpose (such as members of Group Oversight and Exco) may give and accept gifts of a value not exceeding R5000.00 on behalf of the Company, as long as this practice is in accordance with the intent of this policy. Any gifts of higher value will be considered Company property and must be recorded in the gift register.
Gratuities, bribes or kickbacks of any kind must never be solicited, accepted or offered either directly or indirectly. This includes money, loans, shares, special privileges, personal favours, benefits or services. Such payments or favours may be considered bribery, which violates the Company’s policy, as well as South African law. Any Employee found guilty of the above could be faced with immediate dismissal and criminal and civil action.
6.6. Charitable donations/sponsorships
6.6.1. The Company takes corporate social responsibility very seriously and may decide to make contributions (whether monetary or otherwise) to charitable organisations, non-profit organisations and similar organisations.
6.6.2. Employees may be required to participate in supporting the Company’s corporate social responsibilities.
6.6.3. The Company is aware that contributions made to charitable organisations, non-profit organisations and similar organisations associated with public officials constitutes a high risk due to the inference that such contributions may be made in order to gain an unfair advantage or undue benefit which might constitute bribery or corruption. Accordingly, the Company will take reasonable steps to ensure that all contributions it makes in the course of undertaking its corporate social responsibility efforts are subject to adequate due diligence to avoid the risk of bribery or corruption eventuating. All Employees will be required to support the Company in this endeavour and report any reasonable suspicion that there is a contravention of this policy to the Human Resource department.
6.7. Scholarships, internships, secondments and work experience
6.7.1. The provision of a scholarship, internship, secondment or work experience, whether paid or unpaid, may be viewed as a benefit (and potentially an improper one).
6.7.2. Any offer of a scholarship, internship, secondment or work experience to an Employee must be approved by the Human Resource department. It is incumbent on the Human Resource department prior to approving such scholarship, internship, secondment or work experience to consider whether such offer could be construed as improper, especially if such offer is linked to a government agency or entity, or public official.
6.7.3. Any offer of a scholarship, internship, secondment or work experience made by the Company must be assessed by the Human Resource department to ensure that no conflict of interest arises or that such offer could be construed as improper. This assessment must at least include whether the candidate has any links to government agencies or entities, or public officials.
6.8. Dealing with public officials
6.8.1. The legislative requirements applicable to the Company prohibit the offer, promise or provision of a financial or other advantage or gratification to both local and foreign public officials with the intention that the offer will influence the public official in the performance of his or her official functions, and thereby provide an advantage to the person or entity concerned.
6.8.2. Any dealings by the Company or its Employees with a public official (whether local or foreign) must be treated as higher risk, and commensurate controls must be applied on the basis that the public official is more susceptible to offer or accept a bribe or become involved in a corrupt relationship due to the power they have to abuse their public office or position for private gain.
6.8.3. All Employees are prohibited from offering, giving, or promising any gratification or advantage, to any local or foreign public official in order to influence their decisions or to ensure favourable treatment.
6.8.4. All Employees must seek and acquire prior written approval for all gifts and gratuities (including travel, hospitality or entertainment expenses) to be given to public officials, be they local or foreign and declare, prior to accepting, all gifts and gratuities offered by a local or foreign public official, irrespective of the value.
6.9. Responding to demands
6.9.1. All Employees are required to refuse all solicitations of illicit payments, bribery or corruption. Depending on the situation, Employees are to consider taking the following actions:
6.9.1.1. Tell the person demanding the payment that you are required to report the incident, including the details of the person making the demand.
6.9.1.2. Ask to speak to the person’s managers and explain that any payment must be supported by a valid invoice or receipt.
6.9.1.3. Assess other options. For instance, if a public official demands a bribe during a routine transaction, ask yourself:
6.9.1.3.1. Are there other public officials or bodies, which do not pose a bribery risk, that can assist with your matter instead?
6.9.1.3.2. Are there effective online, electronic or email channels of communication which avoid face-to-face interaction?
6.9.1.3.3. Can a third person be present going forward to reduce the risk of inappropriate requests?
6.9.1.4. Contact your immediate superior or a member of senior management as soon as possible. If you are unable to do so, inform them at the earliest possible opportunity after the event.
6.9.1.5. If refusal to make a payment poses a personal security risk to you, call the appropriate emergency phone number for immediate support such as the police.
6.9.1.6. Consult with the Human Resource Manager for available options to report the incident to the requestor’s employer, the police, judicial authorities, or other public reporting bodies.
6.10. Solicitation, extortion and coerced payments
6.10.1. Employee safety and security, as well as those of our Third Parties, are a priority. If at any point during a demand for a bribe or in response to a true extortionate event you fear for your own safety or for the safety of others due to an imminent threat of physical harm, you are allowed to make or offer to make the payment. These instances are rare, and you are required to report such event and/or payment to your immediate superior or senior management as soon as possible.
6.10.2. Solicitation is the act of asking or enticing another to commit bribery. It becomes extortion when the demand is accompanied by threats that endanger the personal integrity or the life of a person in a position of trust.
6.10.3. The Company prohibits solicitation and extortion by its Employees or Third Parties acting on its behalf, any requests to Employees to make such payments should be reported as soon as reasonably possible to senior management and the Human Resource Manager.
6.10.4. A coerced payment is a payment made by an Employee under the threat of violence, actual violence, or when it will reasonably be considered to endanger the life or health of the Employee or others if payment is not made. Any instance of such payments being repeated, systemic or accepted as part of the way of doing business are not payments made under duress and are not legally defensible.
7. REPORTING OBLIGATIONS
7.1. All Employees and anyone acting on the Company’s behalf has an obligation to promptly report any concerns about or indications of, possible or actual violations of applicable anti-bribery and anti-corruption laws or of this policy to their immediate superior or the Company’s senior management.
7.2. All Employees must report any gratification or demands received for a bribe, whether payment has occurred or not, to their immediate superior at the earliest opportunity. If Employees believe that their own or another Employee’s actions have, or may have, contravened this policy they should report this to the Human Resource Manager or senior management who shall take appropriate action.
7.3. Section 34(1) of PRECCA imposes a reporting obligation, in terms of which any person who holds a position of authority (as defined in section 34(4) of PRECCA) and who knows or ought reasonably to have known or suspected, that any other person has committed an offence of corruption or theft, fraud, extortion, forgery or uttering a forged document, involving an amount of R100,000.00 or more, must report such knowledge or suspicion to a police official. Failure to report as required by PRECCA is an offence.
7.4. It is important to note that section 34(1) of PRECCA only imposes a reporting obligation and there is no duty to investigate; section 34 places the duty to investigate upon the investigating authority with the constitutional mandate to investigate crime in South Africa, specifically the Directorate for Priority Crime Investigation in the South African Police Service.
7.5. Section 34A of PRECCA provides that the Company is guilty of an offence if a person associated with the Company gives or agrees, or offers to give any gratification to another person, intending to obtain or retain business for the Company or an advantage in the conduct of the Company’s business. Accordingly, it is extremely important that all Employees observe and fulfil their reporting obligations as outlined in this paragraph 7.
8. WHEN SHOULD EMPLOYEES REPORT?
8.1. Employees must make a report when:
8.1.1. they have knowledge of any anti-competitive practice, gratification, bribery, or a corrupt activity (or the planning of such an offence); or
8.1.2. they suspect that any anti-competitive practice, gratification, bribery or a corrupt activity has occurred (or a suspicion as to the planning of such an offence).
8.2. Turning a blind eye to incidents of actual or suspected anti-competitive practices, gratification, bribery or corruption is unacceptable. Choosing to ignore incidents of gratification, bribery and corruption itself constitutes an offence under applicable legislation.
8.3. If Employees are in doubt as to whether an incident constitutes an anti-competitive practice, gratification, bribery or corruption they MUST seek advice from their immediate superior or the Human Resource Manager.
8.4. The Human Resources department must ensure that Employees are aware of the internal processes that they must follow to raise concerns and report witnessed and/or suspected gratification, bribery and corrupt activities by Employees and/or Third Parties.
8.5. All reported gratification, bribery or corruption concerns must be escalated to senior management who will ensure that due process is followed.
8.6. The incidents reported must be monitored and the Human Resource Manager should review the results of the case and ensure that appropriate action has been taken. Where cases are not resolved satisfactorily, the Chief Operating Officer must be contacted to intervene and/or conduct a further investigation, and the case should not be closed until this investigation has been concluded.
8.7. The Human Resource Manager will conduct regular ad hoc reviews of reported cases and provide feedback to the Chief Operating Officer for further action. All incident-reporting measures must ensure confidentiality and the protection of whistleblowers.
8.8. In the event of a contravention of any applicable legislation, the Human Resource Manager will, in consultation with the relevant committees and Chief Operating Officer, provide guidance in relation to the requirement to take any further action. This may include the exiting of a relationship with a Third Party, human resources procedures or inquiries, the laying of criminal charges, potential external statutory reporting (for example under section 34 of PRECCA), and/or the potential for voluntary disclosure/criminal complaints to the relevant professional bodies, regulators and authorities.
9. WHISTLEBLOWER PROTECTIONS
9.1. The Company intends to makes use of whistleblowing channels (toll free hotline, email and its website) for reporting unethical behaviour and contraventions of this policy. The Human Resource department must ensure that all available reporting channels are communicated to Employees and are available at all times. For ease of reference, please note the following contact channels:
9.1.1 Email Address- whistleblower@tip-off.co.za
9.1.2 Telephone- 0870952866
9.2. The whistleblower hotline is fluid and subject to change in terms of format, which changes shall be communicated in writing to employees. It is intended for situations where Employees feel unable to raise unethical conduct or contraventions of this policy directly with their immediate superior, the Human Resources department or senior management. Employees may make confidential and anonymous reports using the whistleblower hotline.
9.3. The Company’s employees are entitled to protection for certain disclosures which meet the requirements of the Protected Disclosures Act and will not suffer any occupational detriment for submitting a protected disclosure which complies with the Protected Disclosures Act.
9.3.1. A protected disclosure involves any disclosure of information regarding any conduct of an employer, or of an employee or of a worker of that employer, made by any employee or worker who has reason to believe that the information concerned shows or tends to show one or more of the following:
9.3.1.1. that a criminal offence has been committed, is being committed or is likely to be committed;
9.3.1.2. that a person has failed, is failing or is likely to fail to comply with any legal obligation to which that person is subject;
9.3.1.3. that a miscarriage of justice has occurred, is occurring or is likely to occur;
9.3.1.4. that the health or safety of an individual has been, is being or is likely to be endangered;
9.3.1.5. that the environment has been, is being or is likely to be damaged;
9.3.1.6. unfair discrimination as contemplated in Chapter II of the Employment Equity Act No. 55 of 1998, or the Promotion of Equality and Prevention of Unfair Discrimination Act No. 4 of 2000; or
9.3.1.7. that any matter referred to in paragraphs 9.3.1.1 to 9.3.1.6 has been, is being or is likely to be deliberately concealed.
9.3.2. In accordance with the Protected Disclosures Act, such protected disclosure must be made to:
9.3.2.1. a legal adviser;
9.3.2.2. an employer (i.e. the Company);
9.3.2.3. a relevant State Institution Supporting Constitutional Democracy established by Chapter 9 of the Constitution of the Republic of South Africa 1996; or
9.3.2.4. any other person or body in accordance with section 9 of the Protected Disclosures Act.
9.4. The Whistleblowing hotline details areas detailed in clause 9.1.1 and 9.1.2.
10. TRAINING
The Human Resources department will ensure that all Employees receive training on this policy, the reporting channels and the importance of acting ethically should the same be required by employees.
11. ADHERENCE, BREACH AND SANCTIONS
11.1. The provisions of this policy are mandatory.
11.2. Any wilful and deliberate non-compliance with this policy and its supporting minimum standards and operating procedures can expose the Company, Employees, interns and Third Parties to significant regulatory sanction, fines, and criminal liability.
11.3. The increased reputational risk arising from such non-compliance negatively affects the Company’s ability to attract and retain customers.
11.4. Any wilful and deliberate non-compliance by Employees may result in disciplinary action, which may lead to dismissal and may include civil or criminal prosecution in terms of the applicable legislation.
11.5. The Company reserves the right to pursue all legal means to recover proceeds generated through gratification, bribery or corruption.