amaBhungane | NPA will not prosecute Karpowership case

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  • The Director of Public Prosecutions in Pretoria has declined to prosecute environmental consultants who helped Karpowership SA bypass environmental regulations.
  • The Green Scorpions wanted the NPA to consider criminal charges against Triplo4 Sustainable Solutions for breaching the National Environmental Management Act, a serious charge that carries a 10-year jail sentence and/or a R10-million fine.
  • The decision clears an important hurdle for the contentious project that would supply emergency power from gas-fired powerships. 
  • For more financial news, go to the News24 Business front page.

The National Prosecuting Authority (NPA) has declined to prosecute a criminal case linked to the contentious Karpowership SA project.

A case was opened in May 2021 by the Environmental Management Inspectorate (aka Green Scorpions), which investigates environmental crimes. It relates to Karpowership's 2020 attempt to bypass the complex process of obtaining environmental permits.

At the time, the country was in the grip of the Covid-19 pandemic and Karpowership's environmental consultants claimed that this "emergency" was a good reason to grant Karpowership an exemption under Section 30A of the National Environmental Management Act (Nema).

Exemptions are for extreme cases, where fast action – without first asking for environmental authorisation – can prevent an even bigger disaster.

Instead, consultants from Triplo4 Sustainable Solutions argued that Karpowership should be granted an exemption because its powerships would provide emergency power to hospitals, which would keep ventilators running during load shedding and those infected with Covid-19 alive.

Controversially, a senior official at the Department of Forestry, Fisheries and the Environment (DFFE) agreed and granted Karpowership the coveted exemption off the back of a verbal application.

But that soon unravelled when Hantie Plomp, the environmental consultant from Triplo4, was asked to confirm details of the emergency Karpowership would address.

"When the company had initially submitted their request, it had indicated that the country's electricity supply was under threat because of the increased pressure on the healthcare system as a result of the Covid-19 outbreak. The motivation for the request was to ensure an uninterrupted supply of energy to the healthcare sector, something which Eskom was unable to guarantee," the department explained in a statement.

Instead, the department suspected Karpowership planned to use the exemptions to bid for the upcoming Risk Mitigation Independent Power Producer Procurement Programme, which would not provide electricity for two years at least.

"[T]here was in fact no emergency situation," the DFFE concluded.

Providing misleading information to secure a section 30A exemption is a serious offence: those found guilty face 10 years in jail and/or a R10-million fine.

It is not in dispute that Karpowership secured a section 30A exemption it did not deserve. The only question, in terms of the law, was whether the company's environmental consultants "wilfully, knowingly or negligently" provided "incorrect or misleading information".

"Should prima facie evidence exist of an offence, the department will bring the relevant information to the attention of the South African Police Service for further investigation and/or the Director of Public Prosecutions to commence a prosecution," spokesperson Albi Modise told us at the time.

By May 2021, the Green Scorpions' investigators were convinced that Triplo4 had a case to answer.

Read |  Green Scorpions close in as Karpowership tries to save R225-billion deal

But after opening a case with the police and handing over a docket to the NPA, the case went quiet.

AmaBhungane asked the NPA for feedback in January, April and August last year, and was repeatedly told that no decision had been taken. However, when we approached the NPA this week, spokesperson Lumka Mahanjana told us that the NPA had declined to prosecute the case back in April last year.

"[T]he investigation conducted did not uncover evidence proving the commission of the alleged offence and, on 11/04/2022, the DPP: Gauteng (Pretoria) declined to institute a prosecution on this docket."

The decision not to prosecute appears to have caught the DFFE off-guard. When amaBhungane spoke to the department in August, it was still waiting to hear from the NPA.

The NPA decision has wide-reaching consequences for Karpowership and its ongoing bid to supply South Africa with electricity from gas-fired powerships, which would be moored in Richards Bay, Saldanha and Ngqura.

After losing its section 30A exemption, Karpowership formally applied for environmental authorisation. That application was rejected in June last year, because of concerns about the impact the floating power stations would have on the birds, sealife and the local fishing industry, among other things.

Explaining the decision, Modise told SAFM: "If we give you an authorisation on a project of a long-term nature, we need to be comfortable that we can live with that decision for the next 20 years."

Read |  How Karpowership was torpedoed by substandard environmental studies

But by this point Karpowership had already been selected to supply 1 220MW of power to Eskom under the Risk Mitigation Independent Power Producer Procurement Programme (RMI4P).

On appeal, Environmental Minister Barbara Creecy agreed to leave the door open for Karpowership by agreeing that the company could reapply once additional environmental studies had been done. That was done in January, and Karpowership said it anticipated the department would decide on its application by March.

If the NPA had gone ahead with a case against Triplo4 and its directors, it would have jeopardised Karpowership's current application: environmental assessment practitioners are supposed to be independent experts who provide an unbiased opinion on whether a project can go ahead without causing environmental damage.

If their integrity is thrown into question, their advice becomes questionable as well, and the department could easily reject any applications they make for environmental authorisation on behalf of their clients.

AmaBhungane was not able to reach Triplo4 or Plomp for comment at the time of publication.

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