Mkhuseli Khusta Jack vs. EP Herald

This ruling is based on the written submissions of Mr M. Boqwana, for Mr M.K. Jack, and the EP Herald newspaper.

Mr Mkhuseli Jack complains about an article in the EP Herald, published on November 11, 2009, and headlined Big guns built shoddy homes.

The main complaint is that the article is defamatory towards Jack, as it is said to implicate him as an unprofessional and corrupt person who was responsible for building shoddy houses – while there is no evidence that linked him with houses that were built badly.

It is also complained that the story was published without proper investigation, in that:

The story is about several top politicians and businessmen in Nelson Mandela Bay who have been implicated in building shoddy, low-cost houses in the 1990s that now needed to either be demolished or rebuilt. The cost to the 1852 houses in Nelson Mandela Bay that needed rectification would reportedly amount to R33M.

The story identifies Jack as one of the people responsible for this situation. In the story he denies building any sub-standard houses, saying his company had hired professionals to build the houses 10 years ago.

He also reportedly said that:

The story also mentions that Stocks and Stocks sub-contracted Ilinge Development Service, chaired by Jack, to build RDP houses in 1999.

We shall now look at the merits of the complaint:

The main complaint is that the story links Jack to the building of shoddy houses, while there is no evidence thereof.

There is no question that the story does make this link. After the intro, that says that several top politicians and businessmen have been implicated in building hundreds of shoddy houses, the second sentence reads: “Among them are businessman and top city Cope member Mkhuseli Jack…” (emphasis added)

The only question here is if the newspaper had enough substance to make this allegation.

The newspaper says the houses in question were clearly listed by the provincial housing department as being sub-standard and that Jack also admitted that he was involved in building some of them. This, EP Herald says, was enough evidence to publicly link Jack to the issue.

This argument is not convincing. Jack never admitted that he was responsible for the building of shoddy houses – hence the complaint. The only thing that he “admitted” to was that he was involved in building some houses. That, in itself, does not make him a guilty party. (He said he had build approximately 200 houses, while 1852 houses in that area needed repair.)

If the newspaper had had any evidence that the houses that Jack built were included in those that needed to be demolished or repaired, it did not report it. It only says that its reporter inspected houses in the area and found “some” of them were falling apart. These houses could easily have been built by builders other than Jack.

In short: The article links Jack to the building of shoddy houses without providing a single shred of evidence to support it.

EP Herald did not produce any such evidence in its reaction to the complaint either.

Even worse:

This is quite serious, as it probably damaged Jack’s reputation and public image – making a mockery of the old media ethical guideline namely to minimize harm as far as possible.

Based on the above, the complaint that the story was published without proper investigation can only be upheld. However, this part of the complaint pertains to specific issues other than implicating Jack for being partly responsible for the housing debacle (as discussed above).

These issues include that Jack undertook the work almost 11 years prior to the publication; that he was not a subcontractor with the building company Stocks and Stocks; that there has never been a single complaint about the approximately 200 houses that he built; that he and his partners were throughout the construction process guided by building professionals; and that the houses referred to in the story were certified by professionals.

Oddly enough, in its reaction to the complaint the newspaper says Jack “did not mention to her (the reporter, Khanyi Ndabeni) that the houses had been certified by professionals, duly handed over to the municipality and that no complaints had ever been received. If he had, we would certainly have included this information in the story. Mr Jack only made these comments to Ndabeni after the story was published.”

This is odd, because those are the very statements that have indeed been reported in the story…

Be that as it may, the complaint that the article was published without proper investigation pertaining to the specific issues mentioned above is without foundation. The article indeed states that Jack undertook the work 10 years earlier, that there has never been a single complaint about the condition of the houses that Jack built, that Jack and his company were throughout the construction process guided by building professionals, and that the houses referred to in the article were certified.

The only exception is the complaint that Jack was not a subcontractor with Stocks and Stocks, but that he was rather working in a joint venture. Ndabeni, however, maintains that Jack told her that he was a subcontractor with Stocks and Stocks. The newspaper also says it was only after publication that Jack pointed out that it was a joint venture.

Clearly, Ndabeni was under the impression that Jack was a subcontractor with Stocks and Stocks. This is not necessarily due to poor investigation, as the complaint suggests.

EP Herald implicated Jack in the poor building of houses without providing any shred of evidence to this effect. It also stated it as a fact, without any reference to a source.

This amounts to a breach of

The complaint about the alleged poor investigation is dismissed.

EP Herald is directed to publish a summary of this finding, together with an appropriate apology for the harm it may have caused to Jack. Our office should be furnished with the text prior to publication.

Please note that our Complaints Procedures lay down that within seven days of receipt of this decision, anyone of the parties may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Ralph Zulman, fully setting out the grounds of appeal. He can be reached at [email protected].

Johan Retief

Deputy Press Ombudsman