- The Gauteng High Court has set aside a decision to rewrite two matric papers that were leaked.
- It found that Basic Education Minister Angie Motshekga was responsible for the 'unlawful, irregular' decision.
- The court ordered that the exam papers should be marked, as it is pupils' right irrespective of what certifications may be made by Umalusi now or in the future.
The Gauteng High Court in Pretoria found that the decision by Basic Education Minister Angie Motshekga to have matric pupils rewrite two leaked examination papers was unlawful, finding that she was not authorised to make such a call.
In November, it emerged that the Mathematics Paper 2 and Physical Science Paper 2 exams had been leaked to pupils.
Following a short investigation, a preliminary report into the leaks, and an ultimatum by quality assurer Umalusi that said it would not recognise the results of the two papers if not rewritten, Motshekga announced that the two exams would be rewritten.
The decision led to litigation whereby several students, the South African Democratic Teachers' Union (Sadtu), and AfriForum approached the court to have the decision set aside.
Decision
In his judgment, Judge Norman Davis grappled with who had actually made the decision to rewrite the examinations. This was also a bone of contention during arguments in court.
"In order to determine whether the decision was authorised by the empowering provisions, it must first be determined who took the impugned decision as this important aspect is not clear from the respondents,” Davis said.
Motshekga's attorneys argued that it was the director-general (DG) of the Department of Basic Education that took the decision to rewrite, and was empowered to do so.
Davis agreed, but said there was no evidence that the DG had taken the decision.
In his judgment, Davis also referred to the minutes of the meeting where the decision to have to pupils rewrite the exams was taken.
"Therein the DG does not feature as a decision-maker, but the Council of Education Ministers (CEM) does. The CEM is however not a formal body nor an administrator which features in the regulations nor and neither is it empowered thereby to take the impugned decision."
Having regard to the relevant documents and records, Davis found that it was Motshekga who took the decision pursuant to the decision of the CEM.
Davis said:
Davis added that in the event that he is wrong, the fashion in which the decision was taken would have been beyond the power of the application empowering provisions.
Rationality
Davis agreed with the applicants’ arguments that Umalusi had forced the minister and the department into a corner by stating as a fact that it would not certify the examinations and a rewrite must be declared.
"Umalusi had no authority to prescribe or to make prescriptions regarding the rewrite of any papers and therefore any abdication of decision-making process to Umalusi or submission to Umalusi’s premature views as a determinative of a decision, resulting in decision falling foul of section 6(2)(e) of the Promotion of Administrative Justice Act (PAJA)."
Umalusi also sought to bolster its stance by repetitive allegations that the extent of the leak was unknown and suggested that the leak was widespread.
"This fear is more apparent than real," Davis said, adding that there was no event at present to suggest a viral leak occurred.
Davis said 195 pupils out of 339 000 pupils who wrote mathematics paper 2 were found to have had access to the paper before the time of writing the examination.
He said this translated to less than 0.06% and that the percentage of pupils who had access to physical science paper 2 was even lower.
"The conclusion by Umalusi that such a negligible percentage has so irrevocably damaged the integrity of these two papers that it cannot be certified cannot be sustained."
"Even if the extent of the leakage is hundredfold of that already identified, the question is still whether a 6% compromise would result in a non-certification. Umalusi has not even considered this or at least not done so on the papers."
Davis also pointed out that according to the relevant legislation, Umalusi could refuse to issue a certificate of assurance if a "substantial" irregularity had occurred.
"On the only available evidence to date, it can hardly be found that the percentages referred to above, amounts to being 'substantial'.
"Once it is found that Umalusi’s stance is so irrational as to be without foundation, then any reliance on its prescripts or dictates would equally be irrational, at least to the extent that no reasonable person would rely thereon."
Orders
Davis found that the decision was not only irregular, but also unlawful and ordered that it be set aside.
The effect of the judgment is that pupils do not have to rewrite the exam papers, pending any possible appeals.
Davis also ordered that the exam papers should be marked, as it is the pupils' right, irrespective of what certifications may be made by Umalusi now or in the future.
He further ordered that the minister and the department pay the costs of the applicants, as well as the costs of the amicus curiae.
In a short statement, Umalusi spokesperson Lucky Ditaunyane said they were disappointed by the judgment, but respected it nonetheless.
Umalusi would continue to support and work in collaboration with the relevant structures in the ongoing investigations into the leakage of the two papers.
Ditaunyane said: