Cape Town - There was a huge sigh of relief for matric pupils, Sadtu and AfriForum on Friday when the Pretoria High Court reviewed and set aside the Basic Education Department's decision to rewrite two leaked papers.
This came after some pupils, Sadtu and Afriforum, challenged the department's decision that Mathematics paper two and Physical Science paper two be rewritten.
The drama started around mid-November when the department confirmed that there was an exam paper leak of Mathematics paper two.
A week later the department confirmed that the Physical Science paper two was leaked and circulated before the exam sat.
This necessitated a wider probe to establish the extent of the leaks so as to determine if a rewrite of the two papers was necessary.
While the department was conducting its investigations, quality assurance body Umalusi entered the fray indicating that its main priority was defending the credibility, integrity and validity of the examinations.
“If there is no rewrite, Umalusi will reserve its right to pronounce in February,” chief executive Mafu Rakometsi said.
The Hawks arrested a man who has been linked to the leak of the mathematics paper two.
Themba Daniel Shikwambana, 31, was granted bail and is set to re-appear in court in January.
This as the department's own investigation implicated 195 out of the 339 000 who wrote the maths paper.
When announcing the rewrite, Basic Education Minister Angie Motshekga said the Council of Education for Ministers - which constitutes the minister, director-general, provincial education MECs and their heads of departments, had considered the recommendations of the National Examinations Irregularities Committee.
But, the decision was not welcomed in some quarters and it came in for a flak with Sadtu and Afriforum joining in the litigation that subsequently ensued.
The department maintained the rewrite was the only option available.
But, this did not appease Sadtu, Afriforum and the pupils, who then pursued the matter through litigation.
On Friday, the High Court in Pretoria overturned the decision to order a rewrite of the leaked papers.
Judge Norman Davis found the decision irregular and unlawful, and reviewed and set it aside.
"I further conclude that the learners have a right to have their exam papers marked in terms of regulation 45, which provide for such right, irrespective of whatever proposal or certifications may be made by Umalusi, now or in the future," Davis said.
“In the exercise of my discretion, I find no cogent reason to depart from the general principle that costs should follow the event. This should include the costs of the curiae who made a useful contribution to the debate of the matters,” he added.
Sadtu said it was vindicated by the court’s decision and the judgment has saved thousands of pupils from a grave injustice that would live with them for the rest of their lives.
“As a representative of the teachers to whom learners are entrusted, we could not divorce the union from the interest of both learners and teachers,” Sadtu general secretary Mugwena Maluleke said.
Maluleke also said the decision to have all rewrite was unfair and premature because the investigation had not been concluded.
"Based on the initial investigation which showed that the number of learners who may have seen the paper are less than 195 out of the 339 000 who wrote the maths paper which translate to less than 0, 06% and an even lower percentage in respect of the physical science paper, there was no basis for a national rewrite," Maluleke said.
Afriforum said the court finding meant that no matric pupil that acted bone fide had to take the supplementary exam and that their first attempt would be marked and the marks would be made available.
“AfriForum welcomes the court finding and considers it not only as a victory for the almost 400 000 matriculants who would have been disadvantaged by Minister Motshega’s decision, but also as a victory against the Department’s unfair, arbitrary and one-sided decision in this regard.
"We urge the department to now focus on arresting the guilty parties to ensure that the integrity of the exams is beyond reproach,” Afriforum's advisor on education rights Natasha Venter said.
Venter also said they would request the department to make known what steps would be put in place to prevent similar transgressions in the future.
DA's Baxolile Nodada called on the department to respect and abide by the court’s decision.
"This will avoid any further delays and disruptions to the 2020 academic year," Nodada said.
Moments after the ruling, Basic Education spokesperson Elijah Mhlanga tweeted, "the Department of Basic Education is currently studying and processing the judgment internally. At the right time, soon, a statement will be issued with a response. No further comment for now."
Political Bureau