Four matric learners want the high court in Pretoria to declare the decision to have a national rewrite of the two leaked matric exam papers unconstitutional and to be set aside.
The four learners from schools in Pretoria — assisted by lobby group AfriForum — want the matter to be heard on an urgent basis on Wednesday.
The department of basic education (DBE) has until today to file responding papers if it wishes to defend the rewrite. All teachers unions and numerous other education organisations have called the rewrite an overreaction.
On Friday, basic education minister, Angie Motshekga announced that the Council for Education Ministers (CEM) decided that the mathematics paper two and physical science paper two that was leaked a few hours before they were written must be rewritten. The CEM is a forum comprising the minister, the director general in the department of basic education and the MECs of education.
Motshekga said the decision to have a national rewrite was taken after a preliminary investigation report into the leaks had found that it would be impossible to determine how many learners had access to the papers because they were shared on WhatsApp.
She also said that the investigation had found that the original recipients of the leaked papers were 195 learners in the same matric WhatsApp group, but that it could not be established how many more learners that group had shared the question papers with.
The minister also said that quality assurer Umalusi indicated that it would not recognise the results of the two subjects (mathematics and physical science).
“For me as a minister, if Umalusi says they will not recognise the results, it closes the matter. We can’t risk, as a sector, any situation where Umalusi disowns the results. It is too risky,” Motshekga said on Friday.
The maths rewrite will take place on 15 December and the physical science paper will be written on 17 December.
However, in the court papers, the four learners say the 400 000 learners who wrote the two subjects cannot be prejudiced and be subjected to “collective punishment” for the sins of a select few.
Motshekga is the first respondent in the case; the National Examinations Irregularities Committee is the second; and Umalusi is the third respondent.
The four learners include Lienke Spies and Gerhard Burger from Gereformeerde Skool Dirk Postma, Izak Jacobus Arnold from Montana high school and Christiana Swanepoel from Afrikaans Hoër Seunskool. The law firm Hurter Spies is representing the learners, and AfriForum is the fifth applicant in the matter.
In an affidavit — filed on behalf of the four learners — Lienke said they had found out about the leak through media reports and an announcement by Motshekga after they had written the maths paper.
Lienke argues that the matric exam timetable is made available six weeks before the start of the exams and that it makes “perfect sense” to do so, to allow learners enough time to prepare.
He says that with the rewrite a “sudden announcement” was made that learners were expected to write the two subjects on “very short notice”.
For him, Lienke says this means that on the day of the maths rewrite he would have sat for a three-hour visual arts paper in the morning and again for maths paper two in the afternoon, which gives him little time to prepare.
The four learners have also taken issue with Motshekga announcing on Friday that she had consulted with all stakeholders in the sector before deciding to opt for a rewrite. However, Lienke says no learners were consulted on this decision, even though it directly affects them.
“Notably, the minister failed to consult any institution representing learners such as learner representative bodies, youth organisations or youth structures. In this regard, the minister decided on the most important examination of our lives without even consulting a single learner.”
The learners have asked that, through an answering affidavit, Motshekga discloses the contents of the preliminary report for the court to determine whether the minister and those who agreed on the decision for a rewrite, particularly Umalusi, “acted rationally, reasonably and lawfully in the circumstances at hand”.
“I submit that they did not, and the respondents in the process inflicted harm on the vast majority of the 400 000 learners who sat for either the mathematics or physics paper,” says Lienke in the affidavit.
He also says that the decision is prejudiced against the many learners who had not seen the leaked question papers.
Lienke says, personally, this week alone he has to write three subjects and still has to write visual arts next Tuesday.
“That leaves me with no time to prepare for the second maths paper that I am supposed to start writing two hours after completion of a very exhausting visual arts paper on Tuesday. It is not only me experiencing this prejudice, but every single matriculant who has maths as well as visual arts as a subject,” he says.
Lienke also flagged that the four learners, as per the regulations of their schools, had already handed back the textbooks of the subjects that they had written. They had also destroyed their study notes for the subjects that they had written, because they assumed they no longer had any use for them.
The four learners also say that dishonesty in the matric exams is a criminal offence and that, even if they were suspected of having committed the crime, they have not had the benefit of being presumed innocent until proven guilty.
“The broad-brush approach followed by the minister in punishing us all, even though we have played no part in the mistakes that led to the leakage of the paper, also infringes on our right in respect of the right to presumed innocent.”
The learners claim in the affidavit that the rewrite is a way to protect the 195 learners who are known to have had access to the leaked paper, and not to protect the integrity of the examination.
The department’s spokesperson, Elijah Mhlanga, told the Mail & Guardian that the department had received the court papers, and are studying them to make a defence of their decision.
In a statement, AfriForum adviser on education rights Natasha Venter says that the department should instead find those learners who had access to the leaked papers, instead of disadvantaged learners who had nothing with the leak.
“We cannot allow Motshekga and her department to disadvantage learners who have worked hard throughout their entire school career — and this because the department’s systems were inadequate in the first place to prevent question papers being leaked. There are other, better ways to ensure the integrity of the exam,” she says.
“The leaking of exam papers is severe, but Umalusi and the DBE have not made a strong enough case for why insisting on a national rewrite is appropriate at this moment.
“The public deserves to know when papers were leaked, how far these papers were circulated and how many questions, from each paper, learners had access to. Decisions that drastically affect learners and teachers are being made in a way that is not transparent,” reads the statement.
The two groups said that very few learners that they had spoken to were optimistic about the rewrite.
“This is a terrible situation, and we understand that it is complicated. It does not seem that Umalusi or the DBE spoke to learners before coming to this decision, and we urge them to do that immediately.”
On Saturday, the South African Democratic Teachers Union (Sadtu) has also said that it will be taking the department to court over its decision of a rewrite. The union said the decision was unfair and premature since the investigation into the leak had not been concluded. On Monday, Sadtu spokesperson Nomusa Cembi told the M&G that the union’s lawyers were still working on the court papers.
Another teachers union, the National Professional Teachers’ Organisation of South Africa (Naptosa), has called the decision for a rewrite an “overreaction” and said that the department cannot act on the assumption that because the papers were shared on WhatsApp, they could have gone viral.
Naptosa said it would have been comfortable with a rewrite at the schools where there was evidence that learners had access to the leaked papers.