Umalusi told the Pretoria high court on Thursday that it would be unfair to those matric learners who have to rewrite two subjects that were leaked to wait until February to learn that their results will not be approved.
The quality assurer argued that a rewrite was the only option to ensure the qualifications of the learners are not “questioned or questionable”, considering that the integrity of the two leaked papers has been “irrevocably compromised”.
Judge Norman Davis heard the joint application of several learners and the South African Democratic Teachers Union (Sadtu) today. The applicants’ opposed Basic Education Minister Angie Motshekga’s decision that, following the leak of both the mathematics and physical science paper two, there would be a national rewrite of the two subjects.
The date for the rewrite of maths is next Tuesday; physical science is set to be rewritten on 17 December.
The parties brought the case on an urgent basis and want Davis to rule that the decision announced by Motshekga is unconstitutional, invalid and should be set aside. They also want the court to interdict Motshekga from going ahead with the rewrite.
Umalusi came under fire from the counsels of all the applicants who alleged that the quality assurer bullied Motshekga into the decision by saying that it would not certify the results of the two subjects. Counsel argued that Umalusi had failed to consider other available options instead of a rewrite.
The court heard that voices of senior management within the department and the Council for Education Ministers — the body comprising the minister education MECs, and the director-general of the department — were opposed to a rewrite. Still, Umalusi had been steadfast that a rewrite was necessary, because the leaks had compromised the integrity of the exam.
Quintus Pelser, the attorney of Lienke Spies and three other learners from schools in Pretoria — said after receiving the preliminary investigation report into the leak, Umalusi had already made up its mind about the rewrite and did not wait for a follow-up report.
“From that report, they never moved nor considered anything else except for a rewrite,” he said.
He argued that Umalusi had prejudged the whole matter. “They do not know their place. They are the bully walking around ordering the department on what to do in the name of integrity, in the name of ethics and everything else.”
Pelser argued that Umalusi did not consider that learners might have gone on holiday, or that poor learners might not have money to return to their schools. One of the applicants Pelser is representing is getting married on Sunday and would not have time to prepare for the exam on Tuesday.
At a press briefing on Friday, Motshekga had said that because the leaked papers had been shared on social media, it would be impossible to establish how many learners had access to the questions papers.
This was a claim repeated in court by Chris Erasmus, representing Motshekga, and Dennis Fine, for Umalusi. However, Davis told Fine that he failed to find a factual basis for the claim that a rewrite would have been the only way.
The judge said the department and Umalusi seemed to have been relying on speculation that because the papers were leaked on social media, it would be difficult to establish how many learners had seen them.
He added that basic education director-general, Mathanzima Mweli, said in his affidavit that the paper had gone viral on Twitter. However, he said there were no facts to base that claim on. The judge said it appeared that, according to Umalusi, all other views were unreasonable.
“Umalusi did not care that everyone else was saying ‘no rewrite’. It just said, ‘if you do not rewrite, we will not certify’,” said Davis.
But Fine argued that was not the case. He said the decision for a rewrite was not a thumb-suck or a knee-jerk, reaction but was based on the fear that if the leak was on social media, it could not be arrested.
In an affidavit, Umalusi chief executive Mafu Ramoketsi said several considerations drove the decision to conclude a rewrite. He said, given the method of dissemination of the leaked papers, the integrity of the entire examination system was in question.
However, Sadtu’s papers before the court state that there was no history of a national rewrite in the country and that, when leaks had occurred in previous years, culprits were dealt with without involving “innocent learners”.
Counsel for Sadtu, Wisani Sibuyi, said WhatsApp was a means for dissemination even in previous leaks, yet there had never been a national rewrite. He also questioned why the department did not postpone the writing of the papers on realising that they were leaked or print a backup paper.
However, Ramoketsi said the previous years’ leaks were different because they could be traced to a certain number of learners.
He said Umalusi could not issue certificates when investigations were still ongoing, especially given the view that the integrity of the two papers has already been irreparably compromised.
Counsel for the learners also argued that the learners were not given enough time to prepare for the rewrite and that, on the two days of the rewrites, some had to write other exams in the morning.
Although Rakometsi agreed that a rewrite is “inconvenient and disappointing” he said the “the prejudice of which the applicants complain is, respectively, not serious”.
“The inconvenience is, however, mitigated by the fact that at least 11 days of notice of the rewrite was given and the preparations for these papers have already taken place. The inconvenience is incomparable with the prejudice of postponing matriculation of these candidates by a year,” said Rakometsi.
“The applicants will not suffer any irreparable harm if they are required to rewrite the leaked papers. Taking the exam for the second time, especially in circumstances where preparations have already been finalised, cannot cause irreparable harm. On the other hand, there is a grave risk that they will not receive certificates on the finalisations of the investigation if it demonstrates that the leak of the paper was not contained,” Rakometsi said.
In an affidavit, Mweli said, should the decision for a rewrite be set aside, it would mean that the ongoing investigation into the leaks would be completed only months from now and this would have far-reaching consequences for the learners.
“Pending the finalisation of the investigations, the certification of these two subjects will remain in abeyance. That will bring about the fact that these few hundred thousand learners, some of which may wish to enrol at higher education institutions, or utilise the results of these subjects for whatever purpose, will not be able to do so,” he said.
“That will [mean] these learners will be forced to lose a whole academic year. That must be weighed up against the inconvenience and disruption having to re-write the two subjects.”
A few learners and their parents were present in court on Thursday. Davis will deliver his judgment on Friday.