Judge Norman Davis of the Pretoria high court has ruled that the argument presented for the rewrite of two matric exam papers cannot be sustained. The argument presented in court was that the small percentage of learners who had access to the two leaked matric exam papers has “irrevocably damaged the integrity” of the papers, meaning that their results cannot be certified.
The judge said, therefore, the complaints raised by some learners that it was an “injustice” to subject them to a rewrite was justified, given that the leak reached only 0.06% of the learners, as opposed to the 339 000 who wrote the mathematics paper two examination. He added that the percentage was even lower for the physical science paper. As a result, he said it is not justified to subject “hundreds of thousand of innocent learners” to a rewrite.
This afternoon, Davis delivered his judgment — electronically — on an urgent application that was heard in court on Thursday. The case was brought by four applicants after a decision announced by Basic Education Minister Angie Motshekga on Friday last week that there would be a rewrite of two mathematics and physical science papers, both of which had been leaked a few hours before they were written.
The four applicants included individual learners, the South African Democratic Teachers Union (Sadtu) and lobby group AfriForum. All the applicants wanted the decision announced by Motshekga to be reviewed, set aside and declared unconstitutional.
The individual learners also demanded that the court instruct the department to mark and keep safe not only their answer scripts, but also those of other learners who had not seen the leaked papers. Respondents in the matter included Motshekga, basic education director general Mathanzima Mweli, quality assurer Umalusi and Umalusi’s chief executive, Mafu Rakometsi.
Davis set aside the decision and declared it unlawful. He also ruled that the answer scripts of the learners be marked.
The argument for a rewrite
The argument raised by Umalusi in court was that the extent of the leak was not known and it might have gone “viral”, because the papers were leaked on Whatsapp. This meant that the integrity of the two papers had been compromised; therefore, it could not certify the results, meaning there should be a national rewrite.
A preliminary investigation report into the leak had established that about 200 learners had access to two questions of the maths paper two, and that 61 learners could have had access to the physical science paper two.
Davis said the “fear” by Umalusi that the papers could have gone viral “is more apparent than real”, particularly because, since the interim report, there had been no other evidence provided that proved that the leak could have been wider.
“Umalusi sought to bolster its stance by the repetitive allegations that the extent or actual extent of dissemination of the leaked papers is unknown and, so it suggested, might have been ‘viral’. This fear is more apparent than real. In the first week or 10 days since the discovery of the initial leak, only 195 learners could be identified,” Davis said.
“One would have expected, in an instance of this magnitude or extraordinary nature, that no stone would have been left unturned to further determine the extent of the leakage. The absence, in a similar time period as that which has elapsed prior to the … interim report, of any further leakage or identified learners, supports the inference that there are none, or at best, very few. There is a complete absence of the alleged ‘viral’ spread,” judge continued.
The judgment also says that, even if it could be established that the leak had reached 100 times more learners, it still begged the question of whether a mere 6% of learners having had access to the leaked paper would result in it not being certified. The judge said the evidence before him did not show that Umalusi had even considered this.
Umalusi’s ‘irrational stance’
Davis also said that, according to the General and Further Education and Training Act, which guides Umalusi, the body can refuse to issue a certificate only when it could be shown that a substantial irregularity had occurred. He said the available evidence could not show that 0.06% is 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,” the judge said.
Davis noted that even if the decision to rewrite were rational, there was no reason to justify why the papers had to be rewritten on the dates that had been announced by Motshekga and not in the first week of January. He said counsel for Motshekga, Chris Erasmus, could also not offer an explanation as to why January dates could not be considered. “It was unfair to expect an explanation from counsel, where there is none on the papers,” he said.
Motshekga announced that the maths paper would be rewritten on 15 December and physical science on 17 December.
David also said remarks made by Mweli in the answering affidavit “smack of callousness”. Learners had raised in court papers that the announced dates would prejudice them, to which Mweli said the prejudice was only an “inconvenience” or “smokescreen”.
On Thursday, counsel for all the applicants argued in court that Motshekga had bowed to pressure by Umalusi to announce a rewrite, even though an overwhelming view from different stakeholders was that a rewrite was not the best solution.
Even internal moderators of the two subjects made it clear that a rewrite would not be viable, particularly because the leaks had reached a very small percentage of learners.
“The psychological impact that a rewrite will have on the vast majority of the candidates cannot be overlooked. The possibility that a candidate may take his or her life increases under the circumstances,” a maths moderator had said.
Davis said that already during the decision-making process, Umalusi had informed Motshekga that there is a “risk” it might decline to certify the examination as compliant in February when the results will be released. He said such a view would have made sense after the answer scripts were marked, the statistical moderation completed, and on the presentation of a full report into the extent of the leak and the benefits learners might have gained.
“Such a view expressed by Umalusi would certainly be an important consideration that the minister should take into account as a factor,” Davis said. “It is quite another thing for Umalusi to dictate, at this early and, so the applicants argue, premature stage of the preliminary investigation, that it would as a fact not certify the examination and that, therefore, the minister must declare a rewrite.”
The judgement also states that Umalusi has no authority or to make prescriptions regarding the rewrite of any paper.
“It is clear that the overwhelming view was that it was premature, at this stage unwarranted, [and] prejudicial to order a ‘rewrite’ before the actual extent of the leaks had been established. Yet, at the instance of the ‘unwarranted dictates’ of Umalusi, the minister and the DBE succumbed to its determinations,” Davis said. It was for this reason that the decision for a rewrite “is procedurally irregular and should be reviewed and set aside”.
In a statement on Friday afternoon, Umalusi said it had studied the judgement and cannot preempt the outcome of its processes regarding the approval of the matric results. “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,” it said.
The judgement also sets out that, according to minutes of a meeting by the department of basic education and its stakeholders, it was revealed that 53 learners had been referred to the Hawks, 11 retrieved cellphones and cellphone records were “undergoing analysis”, and further audits of the distribution chain and telephonic interviews with those learners who had received the leaked papers by Whatsapp were being conducted.
Also according to the interim report, 71 of the 195 candidates implicated in the maths leak had been interviewed; the majority said they received the message, but opened it only after writing. The 71 learners also said that they had not shared the message.