- The Mpumalanga High Court set aside an order compelling the Department of Basic Education to release withheld matric results to learners accused of mass cheating.
- The court held that the vast majority of learners did not exhaust internal appeal processes as required by law, nor did they seek exemption from this requirement.
- Attempts to introduce new evidence on appeal were rejected due to non-compliance with statutory procedures.
In 2022, 896 learners from multiple schools in Mpumalanga were alleged to have participated in mass cheating during the National Senior Certificate examinations.
The Department of Basic Education withheld results in specific subjects following disciplinary hearings. Learners were permitted to rewrite after sanctions lapsed in March 2023. By the date of judgment, 467 learners had rewritten, with further rewrites scheduled for later in 2025.
However, 510 learners instituted review proceedings under the Promotion of Administrative Justice Act 3 of 2000 (PAJA), seeking an order to compel the department to release their withheld results. The High Court initially granted the order, but the department appealed to the Full Court.
Exhaustion of internal remedies
The Full Court identified the central question as whether the learners had exhausted internal remedies, as required by Section 7(2) of PAJA. The regulations permit a candidate to appeal to the Head of Department and the MEC. The court noted that the exhaustion of internal remedies is a peremptory requirement unless an exemption is granted on application and in exceptional circumstances.
The court found that “only 101 of the 510 learners took any steps towards internal remedies. Of these, 62 filed what was described as an appeal, and 39 sent a letter seeking information. None pursued the internal appeal process to completion. No application for exemption from the requirement to exhaust internal remedies was made, and no exceptional circumstances were established.”
The court further held, “The evaluation under Section 7(2) of PAJA must occur at the outset of a review application, not after all evidence has been considered.” It rejected the argument that a strong case on the merits or allegations of procedural irregularity could justify bypassing the requirement for internal appeals.
In the ruling, Deputy Judge President TV Ratshibvumo wrote, “Taken to its logical conclusion, such an approach would defeat the purpose of section 7(2), which requires an applicant for judicial review to have exhausted his or her internal remedies before resorting to review proceedings. Allegations of procedural or substantive administrative irregularities per se are not ‘exceptional’ in review proceedings.”
Attempted Introduction of new evidence on appeal
During the argument, the learners’ representatives attempted to introduce new evidence regarding the acquittal of a teacher. Jurge Ratshibvumo refused, stating: “Without such an application supported by affidavit, the court is deprived of the procedural basis to consider the material. Allowing the admission of new evidence without proper procedural safeguards would not only be contrary to the statutory scheme but would also be unfair to the appellants.”
The court further confirmed that the department had prosecuted its appeal within the required timeframes and that the removal from the roll had been due to an incomplete record. It upheld the appeal, set aside the order of the court a quo, and dismissed the learners’ application. No order as to costs was made, as the department had not sought costs, and the court considered it inappropriate to burden the learner.
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