The two leaked matric exam papers must not be rewritten, the Pretoria high court ruled on Friday.
Judge Norman Davis has set aside the basic education department’s decision to have the two leaked matric papers rewritten.
This comes after an urgent application was brought before the court this week by four applicants, including AfriForum and the SA Democratic Teachers Union (Sadtu). They wanted to reverse the department’s decision to rewrite physical science paper 2 and maths paper 2 after the exams were leaked on WhatsApp.
The court was also being asked to compel the department and quality assurance body Umalusi to mark the scripts of pupils represented by AfriForum and those who were not involved in any irregularity regarding the leaked papers.
Davis said in his judgment: “I conclude that the decision to have the maths paper 2 and physical science paper 2 of the national senior certificate examinations of 2020 rewritten was irregular and unlawful and should be reviewed and set aside.
“I further conclude that the learners have a right to have their exam papers marked in terms of regulation 45, which provides for such right, irrespective of whatever proposal or certifications may be made by Umalusi, now or in future.
“In the exercise of my discretion, I find no cogent reason to depart from the general principle that costs should follow the event. This should include the costs of the curiae who made a useful contribution to the debate of the matters,” he said in his judgment, made shortly before 4pm on Friday.
Davis also ordered that basic education minister Angie Motshekga and the department’s director Hubert Mweli take all necessary steps to ensure the examination answer scripts of those pupils who had not been found to have been involved in any irregularities be marked in accordance with the management plan for the exams.
On Thursday, the court heard arguments from the parties.
Advocate Chris Erasmus, representing the basic education department, said it was best that pupils rewrote the papers while the material was still fresh in their minds.
“There is rationality in that we didn’t want the learners to go on switch-off mode and then have to return to write. The material is still fresh in your mind as you have recently written,” he said.
The main concern was whether the right person took the decision about the rewrite.
Advocate Wisani Sibuyi for Sadtu argued who made the decision was relevant.
Sibuyi argued that the decision for the rewrite was taken by the wrong person, therefore calling for the decision to be set aside.
He said the decision, taken by Umalusi, was a clear violation of the decision-making process.
“In the event of the leakage of a national examination question paper, the director-general of the department of basic education and the education minister should decide on the most appropriate course of action,” he told the court.
He said the department’s decision was premature and that in an event of a leak, there must be full investigation.
AfriForum’s senior counsel Quintus Pelser argued that the final decision about a rewrite was influenced by Umalusi.
He told the court the department had other options to follow the leak trails and could have exhausted all avenues before calling for rewrites.
“They could have audited the distribution chain or appoint a private investigating company to follow the trails of the leaks, but this did not happen,” Pelser said.
He said if the irregularity was not caused by hundreds of thousands of pupils, examination answer scripts must be marked and results must be released.
AfriForum welcomed the judgment, saying it was a “victory for the almost 400,000 matriculants who would have been disadvantaged” by the rewrite, and “also a victory against the department’s unfair, arbitrary and one-sided decision in this regard”.
“We urge the department to focus on arresting the guilty parties to ensure the integrity of the exams is beyond reproach,” said Natasha Venter, AfriForum’s adviser on education rights.
Academic year could be lost, department warns
Erasmus said Umalusi had indicated to the department that it would not certify the two papers because they were irrevocably compromised.
Erasmus told the court one should also consider the consequences of no rewrites.
“A no rewrite means a loss of the academic year,” he said.
Umalusi legal representative advocate Dennis Fine said the main point was that the leaks had gone viral.
Basic education department spokesperson Elijah Mhlanga on Thursday said a decision not to rewrite the papers would mean the loss of the academic year.
“If the rewrite does not happen, it means the department will continue with the investigations beyond February. This is the risk from which we are trying to protect the candidates,” said Mhlanga.
The basic education department said it was studying the judgment and would comment soon.
In a statement, Umalusi spokesperson Lucky Ditaunyane said that while the organisation was “disappointed by the judgment”, it would respect it.
“In the meantime, Umalusi will continue to support and work in collaboration with the relevant structures in the ongoing investigations into the leakage of the two papers. At this moment, Umalusi cannot pre-empt the outcome of its own processes regarding the approval of the 2020 National Senior Certificate results because the council needs to implement all its quality assurance processes before a final decision about the credibility and integrity of national examinations can be made.
“Umalusi will not be issuing further statements in this regard,” said Ditaunyane.