Judge Norman Davis has set aside the basic education department’s decision to have the two leaked matric papers rewritten.
Minister of basic education Angie Motshekga announced the rewrites of a maths and a science paper on December 4, giving pupils less than two weeks to prepare.
Four separate groups including the SA Democratic Teachers Union (Sadtu) and Afriforum brought the case against the education minister, provincial MECs and exam accreditation body Umalusi.
Davis concluded the decision was so irrational that no other decision maker or reasonable person would have made it.
This gave him the authority to dismiss Motshega’s decision under the Promotion of Administrative Justice Act (PAJA).
He began his judgment showing sympathy with matriculants, who had had a very difficult year due to the Covid-19 pandemic.
Davis also concluded that many matriculants were unable to write exams now as they had returned their maths and science textbooks to their schools, destroyed their study notes or moved away from school hostels that gave them access to exam venues.
Most had not thought of maths and science or studied them for the past month. “They claim to have in their minds already divested themselves from the two papers.” He added that a rewrite would be traumatic for matrics.
“Apart from the individual circumstances and logistical difficulties, which many learners will face, regarding the proposed rewrites all of the individual applicants complain about the psychological impact of the proposed rewrites.”
He sided with Sadtu, who claimed that the minister had made the decision because she was “panic stricken and extremely fearful” of Umalusi. The union claimed Umalusi had told the minister it would not certify the exams due to the leak.
He found it irregular that the certification body had come to a conclusion about the exams before the scripts had even been marked and before the union determined if there were any statistically significant irregularities.
Davis ruled the body legally “had no authority to prescribe or to make prescriptions regarding the rewrite of any papers”.
He was also not convinced that any evidence existed or had been shown to the court that a substantial number of pupils had seen the leaked papers.
Davis concluded that 195, out of 339,000 pupils, most who had only seen two questions from the maths paper, translated to less than 0.06% of all those who wrote the exam. “The percentage is even lower in respect of the physical science paper.”
He found no evidence the exams were widely leaked or went “viral” as Umalusi had claimed.
He found it a great injustice to subject literally hundreds of thousands of innocent pupils to a rewriting process when a negligible number of people benefitted from the leaked papers.
Umalusi’s conclusion that such a negligible percentage of pupils who seen papers had “so irrevocably damaged integrity of these two papers that it cannot be certified cannot be sustained”.
Davis added that making students rewrite on December 15 and 17 was also unreasonable and irrational.
If exams had to be rewritten, there was no reason they could not have been done in January so that pupils had time to prepare and access text books saying the argument against this “smacks of callousness”.
The department of education has to pay the legal costs of the four groups who brought the case as well as the Suid Afrikaanse Onderwysers Unie, who had acted as friends of the court.
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