- It has been alleged that the matric Maths Paper 2 and Physics Paper 2 exams were leaked.
- Now AfriForum and others are taking Umalusi and the education department to court to prevent a rewrite.
- Umalusi, however, says the leak was widespread and that necessitates a rewrite.
The decision to have matric pupils rewrite the Mathematics Paper 2 and Physical Science Paper 2 exams was not taken rationally and was the result of "bullying" tactics by quality assurer Umalusi, who "speculated" using a preliminary report into the leaks.
This was the crux of the arguments presented in the Gauteng High Court in Pretoria on Thursday in an application by several learners, the South African Democratic Teachers' Union (Sadtu) and AfriForum to have the decision to rewrite the exams be set aside.
Last week, Basic Education Minister Angie Motshekga announced that the Maths Paper 2 and Physics Paper 2 exams would be rewritten after the papers had been leaked.
READ | Lower matric pass rate won't be a train smash, says Motshekga at start of matric exams
Advocate Quintus Pelser SC, representing AfriForum, argued that Umalusi effectively forced the department and the minister to take the decision to rewrite the exams when it announced that it would not recognise the results of the two leaked subjects.
Pelser said that Umalusi had made its mind up on 1 December with nothing more at its disposal than a preliminary report, which was compiled after six days of investigating. He further told the court that the preliminary report, published on 30 November, did not determine the full extent of the leak.
The report allegedly stated that it would be near impossible to determine the full extent of the leak. Instead, the preliminary report found that around 200 matric pupils, of which 195 were part of a top achievers WhatsApp group, were found to have access to Maths Paper 2.
They were top mathematics pupils from across South Africa, who were being tutored by Stellenbosch University. Pelser said the extent of the leaks were prejudged by Umalusi, with the investigation at a stage where it couldn't prove whether the leaks were widespread or not. "They are the bully walking around telling parties what to do," Pelser said.
READ | Matriculants speak out over rewrite: 'It's unfair'
AfriForum further argued that other possible remedies were not considered, such as investigative marking, statistical analysis of the exams or the mandating of a private forensic IT investigation to follow the trail of the leaks to establish the spread. Pelser also pointed out that pupils could easily persuade a court that they were prejudiced by an administrative action, and that pupils who could prove their innocence should be allowed to do so, and have their exams marked.
Advocate Thys Strydom SC, for several learners from Ermelo, had similar arguments about Umalusi, but went further to question who had actually taken the decision to rewrite the exams.
Judge Norman Davis also sought an answer to this because it was held by the Department of Basic Education that the director-general made the decision, but this was not contained in their papers.
Strydom said the minister and the department had failed to weigh up Umalusi's stance against the circumstances of the pupils and instead bent to the will of the quality assurer. He said thousands of students cannot be held to ransom by what Umalusi dictates, using a preliminary report that had its own limitations.
These limitations included the time allowed for investigation, with a concession that it was impossible to collect all the data, given the time frame, or the fact that analysing the data of the leak was a complex exercise, which made it impossible to accurately identify how many pupils had access to the exam papers.
Strydom held that any assertion the leaks were widespread could only be speculative as the data did not support such a view. Had the decision to rewrite been taken after the papers were marked and analysed, then the situation would have been different, Strydom told the court.
He then turned to the psychological impact on the pupils and said this could not be overstated or overlooked, especially given the pandemic and the effect the lockdown had on them and their ability to go to school.
There was also the issue of pupils who had already handed in their school textbooks and destroyed their notes, which is a common practice as soon as matrics have finished a subject.
Minister and the department
Advocate Chris Erasmus, for Motshekga and the department, explained that the leak was not localised and was identified to have spread across provinces. Erasmus said because the leaks were disseminated using social media platforms, such as WhatsApp and Facebook, the leak would be massive.
"WhatsApp is a monster, you don't know how far it goes," Erasmus argued. He told the court the investigation might take months to finish before it could be determined how far the leak of the papers had spread.
Waiting for the outcome of the investigation would have had a devastating effect on the pupils, who needed to have their results to carry on with their lives and apply for higher learning, Erasmus said.
If Umalusi did not certify the results, it would also mean losing the academic year, he added.
Advocate Dennis Fine SC, for Umalusi, however, maintained the decision was rational and based on the extent of the leak, despite it being compiled in a preliminary report. Fine said the leaks went "viral".
He said the decision to rewrite was reasonable because the consequences would be far more dire if the papers were marked now and, then sometime in 2021, it was determined the papers should be rewritten because of the leak.
Umalusi held that this would prejudice matrics, who were looking to study further and enter the employment market - and it would also mean that the credibility of results would be questioned.
On taking the decision using a preliminary report, it was argued that any other arrangement would have caused significant delays in the process, which would cause the same type of prejudice to pupils.
It was maintained that both papers were irreparably compromised and the decision to have the learners rewrite was rationally connected. Judgment is expected to be handed down on Friday afternoon.