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2024
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[2024] ZAMPMBHC 70
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Mkhonto and Others v Minister of Basic Education and Others (2839/2023) [2024] ZAMPMBHC 70 (12 August 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA
DIVISION (MAIN SEAT)
(Consolidated
Case Numbers: 2839/2023 and 2354/2023
)
Case
No: 2839/2023
1.
REPORTABLE:
YES
/NO
2.
OF INTEREST TO OTHER JUDGES:
YES
/NO
3.
REVISED
DATE:
12 August 2024
SIGNATURE:
In
the matter between:
RODGERS
MKHONTO AND 62 LEARNERS
Applicant
and
MINISTER
OF BASIC EDUCATION
First
Respondent
DIRECTOR
GENERAL: DEPARTMENT
OF
EDUCATION
Second
Respondent
MEC:
DEPARTMENT OF EDUCATION
Third
Respondent
UMALUSI
Fifth
Respondent
In
the matter between:
Case
No: 2354/2023
KGOTATSO
NEO MOLOPO
First
Applicant
ARCHIEBOLD
THABANG MATHEBULA
Second
Applicant
JABULILE
MABASO AND 384 OTHERS
Third
Applicant
and
MINISTER
OF BASIC EDUCATION
First
Respondent
DIRECTOR
GENERAL: DEPARTMENT
OF
EDUCATION
Second
Respondent
MEC:
DEPARTMENT OF EDUCATION
Third
Respondent
UMALUSI
Fifth
Respondent
This
judgment shall be handed down electronically by distributing same
to the parties by email and by publication on SAFLII.
Judgment
shall be deemed to have been delivered at 13:00 on 12 August 2024.
JUDGMENT
Roelofse
AJ:
Introduction
[1]
This application concerns 448
learners from a number of schools in the Mpumalanga Province who sat
for their National Senior Certificate
Examinations (“the
examinations”) during October/December 2022 (“the
learners”).
[2]
The learners’ examination
results were withheld and declared null by the Mpumalanga Department
of Education (“the Department”)
because the Department
determined at the marking phase of the learners’ scripts and
pursuant to an investigation that the
learners had committed
irregularities during the examinations in respect of certain of the
examination subjects and at certain
schools. Simply said, the
Department was of the view that the learners cheated when they wrote
certain of the examination papers.
[3]
The papers are voluminous, the
applicants and the challenges they raise are many, the response to
those challenges are few and without
much detail, the law is settled
and the decision is easy.
[4]
In essence, the learners are the
applicants in these proceedings. These proceedings consist of two
applications that were joined
by virtue of an Order of Court as the
overall facts, issues and relief sought are similar in both
applications. The first application
was issued under case number:
2354/2023 and the second application was launched under case number:
2839/2023. I shall refer to
these applications as “the first
application” and “the second application”
respectively.
[5]
The first to fourth respondents, are
cited as: The Minister of Education (“the Minister”); The
Director General of the
Department of Basic Education (“the
Director General”) and the MEC and Head of the Mpumalanga
Department of Education
(“the HOD”), oppose the
application. UMALUSI is cited as fifth respondent. UMALAZI did not
participate in the proceedings.
Despite the respondents being named
in the heading of this judgment, I lay emphasis on them because the
learners are seeking relief
against all of the respondents.
Relief sought by the
learners
[6]
In the both applications, the
learners approach the court under the provisions of Rule 53 of the
Uniform Rules.
[7]
In
both applications, the learners seek the review and setting aside of
the Respondents’ decision dated 31 March 2022 “…
.to
nullify the examination results of the above cited Applicants
[the learners]”, that the learners’ results be released
with immediate effect
[1]
and
costs.
[8]
I shall refer to the decision of 31
March 2022 as “the decision”.
Common cause
[9]
Most of the facts are common cause.
[10]
It
is common cause that: the court has jurisdiction; the learners sat as
candidates in the National Senior Certificate examination
that was
written in October/November of the 2022 Grade 12-year as conducted by
the Department of Basic Education; the learners
sat at the different
examination centres (schools) and in the subjects referred to in the
notice of motion; the Department, through
its legislative structures
and in terms of Regulations for the Conduct, Administration and
Management of Assessment for the Senior
Certificate Examination
(Government Regulation Notice No. R872, Government Gazette No. 31337
of 29 August 2008) (“the Regulation’)
acted upon the
alleged irregularities; both the learners and the Department are
bound by the Regulation; Annexure M to the Regulation
provides for
examination irregularities and how same must be resolved; that
the decision was taken; the decision constitutes
an administrative
action; the learners received letters on 31 January 2023 wherein they
were informed that their results were withheld
and that they were
given an opportunity to re-write the exams in June 2023; the learners
were invited by notice to a disciplinary
hearing; and that they were
informed of the outcome of the disciplinary hearing on 31 March
2023.
[2]
Disputed facts
[11]
This
is where the parties mainly diverge and where the issues lie: the
learners deny any wrongdoing during the examinations and
therefore
“…
that
there exists no foundation for such arbitrary resolution
[the decision] …”
[3]
;
the decision was “…
.predicated
on irregular and disconcerting procedures.
”
[4]
;
the lawfulness “…
through
their
[the
respondents’]
unfathomable
actions…
”
[5]
of the withholding of the examination results amounting to “….[an]
vexatious
act perpetrated by the Respondents….
”
[6]
;
no adequate reasons were given for withholding the examination
results
[7]
; and that the
Department had abused its power
[8]
.
The learner’s
pleaded grounds for review
[12]
The learners, under paragraph 6 in
their amended founding affidavits, plead that the grounds of their
review are that the records
of the disciplinary hearing the that were
indeed furnished by the Department in terms of the Procedure under
Rule 53 do not support
the decision.
[13]
In
respect of procedure
[9]
, the
learners proceed to plead that the charges of irregularities were
baseless because they were charged under a paragraph of
the
Regulation that does not exist
[10]
and therefore it “…
..hampers
our ability to mount a robust defence…
”
to the extent “…
.that
the charges are ambiguous and cause undue embarrassment, as they
ought to have been classified in accordance with section
2(1) of the
Regulations.
”
[11]
;
and that the Department’s records fail to specify the nature of
the irregularities for with the learners were being accused.
[12]
[14]
The learners proceed to plead the
provisions of Annexure M to the Regulation. In this regard, they
plead: the provisions of paragraph
5(8) of Annexure M which provides
for the procedure for the conducting of irregularity proceedings
which provides that a written
notification must be submitted to a
candidate involved in the alleged examination irregularity, or to the
parent or guardian in
the event that a candidate is under the age of
18 years, as well as the Principal. The learners allege that “….
Despite this, the respondents overlooked
this fact and sent written notifications concerning alleged
examination irregularity directly
to us, the minus, instead of
informing our parents or guardians.”
and
“
It’s
important to note that this section is peremptory, implying it
demands strict adherence. the respondents’ failure
to comply
with this section constitutes a breach of the regulations and the
violation of procedure of fairness under the Promotion
of
Administrative Justice Act (PAJA).”
[15]
The
learners plead paragraph 5(8)(b) of Annexure M that provides that the
notification of the irregularity hearing must be forwarded
by
registered mail or be delivered to a particular individual who has to
acknowledge receipt of the notification. The learners
say that the
Department has failed to comply with this requirement, which is
mandatory, and therefore “…
.the
Respondents have been disregarding regulations and procedures,
particularly mandatory regulations. the respondent has been
acting in
their own interest, with no regard to the regulations.
[13]
[16]
The
learners also plead paragraph 5(8)(b) of Annexure M which provides
that all candidates suspected of examination irregularity
must be
allowed to opportunity to respond to the invitation to attend the
irregularity hearing within 10 working days of being
notified of
irregularity hearings. The learners allege that they received the
written notification on 22 February 2023 and that
in terms of the
notification, an irregularity hearing was scheduled for 28 February
2023 and therefore “
Contrary
to the stipulated 10 days’ notice period, we were given a mere
6 days. It is evident that we will not accorded the
requisite ten-day
notice to respond, resulting in procedural unfairness and a breach of
regulations [sic].”
[14]
[17]
Paragraph 5(8)(b) of Annexure M
provides that a candidate under the age of 18 years of age may be
accompanied by his or her parent
or guardian, the school principal or
any other representative. The learners allege that the record reveals
the candidates who were
minors represented themselves during the
hearing and that this contravenes the Regulation and the candidates’
constitutional
rights.
[18]
The learners plead (paragraph
5(8)(b) of Annexure M) that all hearings must be recorded and that
the recording must be kept until
the matter is finalized. This has
not happened according to the learners and constitutes a further
procedural violation.
[19]
Lastly, in respect of the
Regulation, the learners plead that the “nullification letter”
did not inform them of their
right to appeal the decision and that
this violated the learners’ right in terms of the Constitution
to appeal an administrative
decision.
[20]
The learners proceed to attack the
findings of the disciplinary irregularity hearings that were held at
the schools with the learners
that were implicated. The main gist of
the attack is: the procedure that were followed; the time that were
given to the learners
about the nature of the irregularities and the
hearings; the investigations that were conducted do not indicate what
type of irregularities
were committed as provided for in the
Regulation; the disputes for purposes of the hearings were
incorrectly determined; and the
recommendations themselves.
The respondents’
defence
[21]
Only the MEC and the HOD filed and
delivered an answering affidavit The Minister, Director-General, MEC
and HOD delivered a single
heads of argument wherein reliance is
placed on the answering affidavit.
[22]
The MEC and HOD raise preliminary
defences. They allege that the learners have not complied with the
Rules in that the urgent application
that was launched by the
applicants they abused the court process. In my view, the urgent
court had already decided on this when
it struck the learners’
urgent applications from the roll. The MEC and HOD plead that the
learners’ application has
become moot because the time sanction
imposed upon them as sanction after the findings and recommendations
at the hearings had
elapsed. I dispose of this defence at once. The
learners’ applications are not moot for if the relief they seek
is granted,
their results must be issued without them writing one
further exam.
[23]
With regards to the merits, the MEC
and HOD plead that: the irregularities were discovered at the marking
phase and that the learners
were notified that the irregularities
were discovered during the marking of the scripts; irregularities
were detected and scripts
were subjected to further scrutiny; and a
panel of specialists found that some of the marks may not be approved
as some answers
lacked originality and therefore not authentic. The
MEC and HOD disclose the a notice for the hearing of candidates
suspected of
being involved in the examination irregularities was
addressed to the learners wherein they were given notice to attend a
hearing
in terms of Annexure M. The MEC and HOD allege that the
learners were informed of that their results were blocked and of the
process
that would be followed. Meetings were held between the
respondents and the parent of the learners. The respondents plead
that in
some instances the learners appealed but before the appeals
could be dealt with, the learners launched the applications.
Analysis
[24]
The learners allege that the records
that were discovered by the respondents do not support decision. I am
of the view, having regard
to the record that is before me that
indeed the irregularities were committed as found by the Department.
The decision was the
correct one.
[25]
The manner in which the decision was
arrived at after the irregularities were investigated is amiss. I now
turn to this issue. A
convenient place to commence with this issue is
to examine the statutory framework through which this dispute must be
resolved.
[26]
There is no question, and it is
common cause that the decision constitutes administrative act as
defined in the Promotion of Administrative
Justice Act 3 of 2000
(“PAJA”) and that the decision affected the learners.
[27]
Administrative action that affects
any person must be fair. Section 3 of PAJA reads:
“
Procedurally
fair administrative action affecting any person.—
(1) Administrative action
which materially and adversely affects the rights or legitimate
expectations of any person must be procedurally
fair.
(2) (a) A fair
administrative procedure depends on the circumstances of each case.
(b) In order to give
effect to the right to procedurally fair administrative action, an
administrator, subject to subsection (4),
must give a person referred
to in subsection (1)—
(i) adequate notice of
the nature and purpose of the proposed administrative action;
(ii) a reasonable
opportunity to make representations;
(iii) a clear statement
of the administrative action;
(iv) adequate notice of
any right of review or internal appeal, where applicable; and
(v) adequate notice of
the right to request reasons in terms of section 5.
(3) In order to give
effect to the right to procedurally fair administrative action, an
administrator may, in his or her or its
discretion, also give a
person referred to in subsection (1) an opportunity to—
(a)
obtain assistance and, in serious or
complex cases, legal representation;
(b)
present and dispute information and
arguments; and
(c) appear in person.
(4) (a) If it is
reasonable and justifiable in the circumstances, an administrator may
depart from any of the requirements referred
to in subsection (2).
(c)
In determining whether a departure as
contemplated in paragraph (a) is reasonable and justifiable, an
administrator must take into
account all relevant factors, including—
(i) the objects of the
empowering provision;
(ii) the nature and
purpose of, and the need to take, the administrative action;
(iii) the likely effect
of the administrative action;
(iv) the urgency of
taking the administrative action or the urgency of the matter; and
(v) the need to promote
an efficient administration and good governance.
(5) Where an
administrator is empowered by any empowering provision to follow a
procedure which is fair but different from the provisions
of
subsection (2), the administrator may act in accordance with that
different procedure.”
[28]
Irregularities are dealt with under
Regulation 45 of the Regulation. Regulation 45(5) to (7) reads:
“
(5)
The following steps must be followed regarding the issuing of a
National Senior Certificate to a candidate who wrote the public
National Senior Certificate examination suspected of committing an
irregularity:
(a)
It should be established whether the
irregularity was caused by the conduct of the candidate or that of
another person.
(
b)
If the irregularity pertains to one of the examination question
papers of a subject, the results of the subject as a whole will
not
be released, but this will not affect the release of the results of
other subjects.
(
c
) If the
irregularity was not caused by the candidate’s actions and the
candidate did not gain any advantage, the examination
answer script
must be marked and marks must be allocated as set out in the marking
memorandum and the results must be released.
(6)
A candidate who attends an irregularity
hearing may have legal representation.
(7)
Should a candidate decide to have legal
representation, the provincial education department must be informed
of this intention three
(3) working days before the hearing, in order
to allow the Department of Education to ensure appropriate
departmental representation
at the hearing.
(8) If an official is
required to present him or herself at a disciplinary irregularity or
hearing, a union representative may attend
such a hearing as an
observer.”
[29]
The Department has established that
the irregularities were caused by the learners’ conduct.
Therefore, the provisions of
Regulations 45(6) and (7) applied,
especially that the learners had a to right to be represented at
their irregularity hearings.
[30]
Annexure M of the Regulation further
clearly seeks to adhere to the provisions of section 3 of PAJA.
[31]
Paragraph 4(5) of Annexure M
provides for irregularities that may occur during the marking
process. Irregularities during the marking
process relate to
irregularities identified by markers of examination answer scripts,
and any other acts committed by examination
officials and markers,
which are in contravention of the national and provincial
regulations.
[32]
Paragraph 5 of Annexure M provides
for the procedures in respect of examination irregularities
identified during the marking process.
[33]
Paragraph 5(7) provides for the
procedures in respect of investigations into examination
irregularities. This paragraph does not
provide for mandatory
participation by learners under investigation for examination
irregularities. Paragraph 5(7)(c) provides
for a discretion to be
exercised by the PEIC to involve certain persons, including learners,
in the investigation process. Paragraph
5(7)(c) reads:
“
The
PEIC may call upon any official in the service of the relevant
provincial education department, or any candidate or candidates
to
appear before the Committee or the two-person team delegated to carry
out the function, and it may also question any candidate
accused of
an alleged irregularity.”
[34]
The position is therefore this. The
Department suspects that examination irregularities at the marking
stage. This triggers a decision
to investigate the suspected
irregularity. The PIEC committee investigates and finds that an
examination irregularity occurred.
The PIEC is therefore entitled to
find that an irregularity had taken place without informing a
candidate that an examination irregularity
is being investigated.
[35]
After it is concluded by the
investigation committee that an irregularity had occurred, a
disciplinary hearing may follow summarily.
Paragraph 5(8) provides
for hearings into examination irregularities. It reads:
“
Should
the relevant irregularity committee decide that a hearing must be
held, such hearing must be held in terms of the following
procedure:
(a) The hearings must be
lawful, reasonable, timely and procedurally fair, and no rights of
the individual should be infringed.
The principle of openness and
transparency of administrative action must be adhered to.
(b) The following
procedure must be followed in respect of hearings:
(i)
Procedures for hearings vary according to
circumstances and persons involved.
(ii)
A written notification must be submitted to
the candidate involved in the alleged examination irregularity, or to
the parent or
guardian in the event of candidates being under the age
of 18, as well to the Principal or centre manager of the institution.
The
following procedure must be followed:
(aa) The written
notification must be forwarded either by registered mail or be
delivered to a particular individual who must acknowledge
receipt of
the notification.
(bb) The written
notification must state clearly that the absence of a reply will not
delay the hearing in respect of the suspected
examination
irregularity.
(cc) Where a candidate,
who is alleged to have committed an examination irregularity, or his
or her parent or guardian or representative
cannot be contacted, the
principal or centre manager of the institution will be required to
assist with contacting the candidate.
If the Principal or centre
manager of the institution is unable to contact the candidate, he or
she must accordingly inform the
secretary of the PEIC in writing. The
inability to make contact with the candidate concerned, or with his
or her parent or guardian
or representative, should not unnecessarily
delay the processing of the irregularity.
(dd) All candidates
suspected of an examination irregularity must be allowed the
opportunity to respond to the invitation to attend
a hearing
regarding the alleged irregularity, within 10 working days of being
notified of an irregularity investigation.
(ee) Candidates who do
not wish to attend a hearing, have the option of making an admission
of guilt in the form of a declaration,
which must be forwarded to the
secretary of the PEIC within 10 working days of being notified of an
irregularity investigation.
(ff ) In the event where
a candidate is under 18 years of age, the candidate may be
accompanied by his or her parent or guardian,
the school principal,
or any other representative.
(gg) Should the candidate
or his or her parent or guardian choose to make use of legal
representation during the hearing, this will
be allowed and the
chairperson of the PEIC must be so informed at least three (3)
working days prior to the scheduled hearing.
(iii)
All hearings must be recorded and the
recording must be kept until the matter has been finalised.
(ivA) If the Head of a
province is not satisfied with the NEIC report, and the dispute
cannot be resolved, the MEC of that province
must make a final
decision.
(v) Decisions and
consequent recommendations by the PEIC, as approved by the Head of
Department or his or her representative, must
be communicated, in
writing, to the person, school or learning institution under
investigation, within 30 working days of the completion
of the
hearing.
[36]
The
learners plead a failure by the Department to strictly adhere to the
procedure provided for in Annexure M. I find that the Department
has
failed to follow the prescripts of Annexure M. In this regard, the
Department did not answer in its papers to the learners’
challenge that the notices of the hearings were defective. If the
notice was defective, and in this instance, all else further
is
tainted. To hold otherwise would offend the learners’ right to
fair administrative action. The Department also did not
rebut the
learners’ allegation that the disciplinary hearings were in
group form. Annexure M does not provide for disciplinary
hearing to
be held in group form. By conducting the hearings in group form, the
Department has offended the learners’ right
to a fair hearing.
No recordings of the hearings were discovered as part of the
record.
[15]
I accept that
there are none.
[37]
I have no doubt that the learners
have cheated and had deserved to be punished as they were. However,
they were entitled to the
prescribed procedure and fairness in in the
process of the Department arriving at the decision. This did not
happen. The learners
must succeed. However, what the learners must
appreciate is that cheating does not pay. Because they have cheated,
they have lost
two years.
Costs
[38]
The applicants were successful however they
cheated in their exams. The Respondents had no other option but to
react. For this reason,
I am of the view that each party pay their
own costs.
[39]
In the premises, I make the following order:
[26.1] The First to
Fourth’s respondent’s decision dated 31 March 2022 is
hereby reviewed and set aside.
[26.2] The first to
fourth respondents are hereby ordered to release those examination
results of the schools and subjects listed
in the notices of motion
under case numbers: 2839/2022 and 2354/22.
Roelofse AJ
Acting Judge of the High
Court
DATE
OF HEARING:
23
July 2024
DATE
OF JUDGMENT:
12
August 2024
APPEARANCES
For the Applicants:
Case No: 2839/23 Mr
Khambako,
Case No: 2354/23 Mr
Sibuyi
For the First to Fourth
Respondents
Ms. Baloyi-Mere
[1]
The
notice of motion mentions each school and each subject in respect of
which the decision was made. This appears from an amended
notice of
motion that was filed on 17 May 2024 after the consolidation of the
first and second applications.
[2]
In
respect of the last mentioned three common cause facts, not all
documents in support of those facts were part of the papers
before
court. The court does however rely on the common trend that appears
from the papers that were indeed before court.
[3]
Para.
4.3 of the “AMENDED FOUNDING AFFIDAVIT Rule 53: Application
for Review” at p. 223.
[4]
Ibid
EndNote
2.
[5]
Para.
4.6 at p. 226.
[6]
Para.
4.7.
[7]
Para. 5.4 at p. 227.
[8]
Para.
5.16 at p. 229.
[9]
Under
paragraph 7 of the amended founding affidavits.
[10]
Allegedly,
paragraph 45 of Chapter 10 of the Regulations whereas the learners
were bound and the irregularity proceedings should
have been under
paragraph 45 of Chapter 10 of Annexure M to the Regulations.
[11]
Para. 7.2 at p 267.
[12]
Para.
7.2 at p 266.
[13]
Para.
7.9 at p. 268.
[14]
Para.
7.13 at p. 269.
[15]
Paragraph
5(8)(iii) of Annexure M.