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- The Gauteng High Court overturned the decision to rewrite two leaked matrix documents.
- It found that Basic Education Minister Angie Motshekga was responsible for the “illegal and irregular” decision.
- The court ordered that the exams be graded, as it is a student’s right regardless of the certifications that Umalusi may take now or in the future.
The Gauteng High Court in Pretoria ruled that Basic Education Minister Angie Motshekga’s decision for tuition students to rewrite two leaked exams was illegal and concluded that she was not authorized to make such a call.
In November, it emerged that the tests for Test 2 in Mathematics and Test 2 in Physical Science had been leaked to students.
After a brief investigation, a preliminary report on the leaks, and an ultimatum from quality insurer Umalusi that it would not recognize the results of the two articles if it did not rewrite them, Motshekga announced that the two exams would be rewritten.
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The decision led to litigation in which several students, the South African Democratic Teachers Union (Sadtu) and AfriForum approached the court to overturn the decision.
Decision
In his opinion, Judge Norman Davis faced who had made the decision to rewrite the exams. This was also a bone of contention during the arguments in court.
“To determine whether the decision was authorized by the empowerment provisions, it must first be determined who made the contested decision, as this important aspect is unclear to respondents,” Davis said.
Motshekga’s lawyers argued that it was the Director General (DG) of the Department of Basic Education who made the decision to rewrite and was empowered to do so.
Davis agreed, but said there was no evidence that the CEO made the decision.
In his opinion, Davis also referred to the minutes of the meeting where the decision was made that the students rewrite the exams.
READ | Matric test rewrites: Department of Education ‘bullied’ into decision, court hears
“In this case, the DG does not appear as a decision maker, but the Council of Ministers of Education (CEM) does. However, the CEM is not a formal body or an administrator that appears in the regulations nor is it empowered to make the contested decision. “
Taking into account the relevant documents and records, Davis found that it was Motshekga who made the decision in accordance with the CEM decision.
Davis said:
“The Director General never appeared in these documents or sequence of events as the decision maker. Any assertion by the minister to the contrary is clearly an afterthought, devoid of factual basis and is rejected.”
Davis added that in the event he was wrong, the way the decision was made would have been beyond the power of the app’s enabling 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 he would not certify the exams and that a rewrite must be declared.
“Umalusi had no authority to prescribe or prescribe with regard to the rewriting of any document and thus any abdication of the decision-making process to Umalusi or submission to Umalusi’s premature views as determinative of a decision, resulting in a decision that violates section 6 (2) (e) of the Promotion of Administrative Justice Act (PAJA) “.
Umalusi also tried to bolster his position with repeated accusations 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 current event to suggest that a viral leak occurred.
Davis said 195 students out of 339,000 students who wrote math test 2 had access to the test before the time the test was written.
He said that this translated to less than 0.06% and that the percentage of students who had access to test 2 in physical sciences was even lower.
“Umalusi’s conclusion that such a negligible percentage has so irrevocably damaged the integrity of these two documents that it cannot be certified cannot be sustained.”
“Even if the extent of the leak is one hundred times greater than that already identified, the question remains whether a 6% commitment would lead to non-certification. Umalusi has not even considered this or at least it has not done so in the newspapers. “.
Davis also noted that, according to relevant legislation, Umalusi could refuse to issue a certificate of reliability if a “substantial” irregularity had occurred.
“Based on the only evidence available to date, the percentages mentioned above can hardly be found to be ‘substantial’.
“Once Umalusi’s position is found to be so irrational as to be unfounded, then any reliance on his prescriptions or dictates would be equally irrational, at least to the extent that no reasonable person would rely on them.”
Orders
Davis deemed the decision not only irregular, but also illegal and ordered it to be vacated.
The effect of the ruling is that students do not have to rewrite the exams, pending possible appeals.
Davis also ordered that the exams be scored, as it is the right of the students, regardless of what certifications Umalusi may take now or in the future.
He further ordered the minister and department to pay the applicants’ costs, as well as the costs of the amicus curiae.
In a short statement, Umalusi spokesman Lucky Ditaunyane said they were disappointed with the ruling, but respected it nonetheless.
Umalusi would continue to support and work in collaboration with the relevant structures in the ongoing investigations into the leak of the two documents.
Ditaunyane said:
“At this time, Umalusi cannot anticipate the outcome of its own processes regarding the approval of the 2020 Senior National Certificate results because the Council must implement all its quality assurance processes before a final decision can be made on the credibility and integrity of the national examinations.
