REPORT UPON INVESTIGATIONS INTO POSSIBLE IRREGULARITIES IN THE 1998 MPUMALANGA SENIOR CERTIFICATE EXAMINATIONS
Judge E Bertelsmann SC
Acting Judge of the High Court
Pretoria
REPORT TO THE HONOURABLE MINISTER OF EDUCATION. DR SIBUSISO BENGU REGARDING THE INVESTIGATIONS INTO CERTAIN IRREGULARITIES WHICH ALLEGEDLY OCCURRED DURING THE SENIOR CERTIFICATE EXAMINATIONS OF 1998
INTRODUCTION
1.
The Honourable Minister of Education, Dr Sibusiso Mandlenkosi Emmanuel Bengu, acting with the consent of the Honourable Judge President of the Transvaal, Mr Justice B M Ngoepe, and the Minister of Justice, the Honourable Dr Dullah Omar, appointed me at the beginning of March 1999 as judicial co-ordinator of two concurrent investigations into the above alleged irregularities. At the same time, I was requested to report upon and make recommendations in connection with a number of aspects, which arose, from the alleged irregularities and their consequences.
2.
I have the privilege to present my report herewith. I must underline, however, that the report had to be prepared within a very limited time frame. It has been impossible to investigate each and every single allegation that has been made in respect of the 1998 Senior Certificate Examination in Mpumalanga.
3.
This was in any event not my brief: the investigation every factual allegation of alleged unlawful conduct is the function of the Commercial Branch of the SAPS, whose members are still engaged upon their task. SAFCERT on the other hand is ascertaining the exact margin by which the marks in some subjects were increased, is re-adjusting these marks and determining the correct results.
4.
The mere fact that allegations of serious misconduct and unacceptable practices and procedures were being made, of which a number appeared to be true, is however relevant in itself because of the effect which these averments had and still have upon the credibility of the system and upon the position of the individuals who are directly affected thereby.
5.
My comments and facial findings must be seen as provisional, as they are subject to the findings by SAFCERT and to the outcome of any criminal prosecution which may be instituted once the police investigations have been concluded.
THE NATURE AND FOCUS OF TO INVESTIGATIONS
6.
A. THE SAFCERT INVESTIGATION
SAFCERT's investigation focuses primarily on establishing the precise extent of the irregularities, the subjects in which and the candidates whose marks were altered unlawfully and to establish what the correct marks of each candidate in each subject ought to be.
To this end, Dr Calitz, who was primarily responsible for conducting the investigation on SAFCERT's part, collected all available mark sheets from the Mpumalanga Education authorities for a number of subjects. (Some mark sheets appear to have been lost).
The mark sheets were subjected to careful analysis to establish whether the marks as recorded thereupon had been tampered with or not. The result will be set out below in greater detail: tampering did indeed occur.
The SAFCERT report is not yet complete and will be presented by the Council itself in due course. It is expected that this report will be completed by not later then 22 April 1999.
B. THE POLICE INVESTIGATION
The police investigation is aimed at identifying the culprits who were responsible for the act of tampering itself. From the very beginning, rumours abounded that one or more highly placed officials in the Mpumalanga Department of Education had ordered or arranged that the marks should be increased to enhance the political standing and reputation of the Mpumalanga Government and its department of education. The precise motive with which the unlawful actions were pond will presumably only be known once the police investigation has been concluded and a prosecution has resulted. At this stage it is, however, clear that at least one senior official was involved in increasing marks on the mark sheets of several subjects across the board, acting in concert with other responsible persons in a position of trust.
The persons responsible must prima facie have been aware (always subject to their right to reply and to explain), that:
Once the culprits are identified, a criminal prosecution should result, in which the State must be requested to insist on appropriate terms of imprisonment should a conviction of fraud or forgery and uttering follow.
8.
C. THIS REPORT
In my own investigation, I concentrated upon the following areas:
METHODOLOGY
9.
Given the very limited time flame, in which my report had to be prepared, I endeavoured to collect as much information from as many sources as quickly as possible. I held consultations with:
9.1 officials of the national Ministry of Education;
9.2 it's Director General, Dr N C Manganyi;
9.3 officials of the Department of Education in Mpumalanga;
9.4 The Mpumalanga MEC for Education, Mr D Mabuza;
9.5 Dr F Calitz, CEO of the South African Certification Council;
9.6 the chairperson of SAFCERT, Dr M Nkomo;
9.7 the South African Police Services represented by Captain Joubert, Superintendent du
Plessis, Commissioner Esterhuize, Captain Nel and Director Meiring;
9.8 representatives of Governing Body Associations;
9.9 representatives of Parent Associations;
9.10 representatives of Teacher Unions;
9.11 representatives of Student Representative Bodies;
9.12 concerned individuals;
9.13 members of the public;
9.14 staff members of the Mpumalanga Education Department;
9.15 representatives of the Joint Matriculation Board;
9.16 the South African Universities' Vice Chancellors' Association (SAUVCA);
9.17 the Committee of Technikon Principals (LISP);
9.18 SAFCERT;
9.19 two individual examiners; and
9.20 three individual moderators.
10.
Wherever possible, I obtained the views of experts and of officials who are involved in the day-to-day administration of schools, education departments, examinations, quality control and standardisation. I informed those individuals and bodies who are criticised in this report of my provisional findings and allowed them to react thereto.
Regular follow-up consultations were held, personally and telephonically, whenever necessary or possible.
11.
I also received a number of written submissions and other documentary evidence.
12.
12.1 I am indebted to everybody who gave freely of their time and advice. Because of the fact that not all investigations have been concluded, particularly the investigation by the South African Police, I request that the full list of witnesses I interacted with be regarded as confidential at this stage.
12.2 After invitations had been addressed to all representative student bodies for purposes of a meeting on the 19th of March 1999, of which not all were reacted to, I received a telephone call during the last week of March 1999 from a SASCO representative in Mpumalanga, claiming that his organisation had not been informed of the meeting and wished to make further representations to me. As I could not attend to the matter immediately, I arranged to call him back during the course of the next day, which I did at the number, which I had been provided with.
12.3 Unfortunately, the gentleman concerned was not available, nor was his provincial chairperson. I left messages for both, but these were not reacted to. Apart from this isolated instance, I spoke to every individual or organisation, which expressed an interest to discuss the subject matter of this investigation with me.
13.
Because of persistent allegations of continued tampering, I requested the South African Police immediately after my appointment to attach all 480,000 examination scripts in Mpumalanga and to transfer them to Pretoria for safe keeping, where they would be available as evidence in any future legal proceedings. I was also motivated by the concern that many parents and schools might wish to have the examination scripts of their children or reamers remarked or re-checked.
14.
The attachment of the examination scripts interrupted the remarking process, which had already commenced. In order not to further prejudice the reamers whose scripts were being remarked, and to ensure easy access to the examination scripts, arrangements were made by the national Department of Education, extremely efficiently represented by Mr Andrè Reyneke and Mrs M Locke, to open the sealed containers in which the Police had placed the examination scripts and to transfer these into the safe keeping of the national Department. Here, numerous employees spent many hours of overtime sorting and accounting for all the examination scripts. This mammoth task was completed within a few days. Every single examination script is now ordered and stacked in subject matter and numerical order and can easily be traced. The national Department of Education and its employees deserve gratitude for their dedication.
15.
Most of the meetings which I held were recorded, always with the consent of the persons I consulted. Mm M Locke of the Directorate Legal Services of the national Ministry provided transcripts, together with other logistical support, while the typing of this report was undertaken by Mrs Elize Paton.
16.
Whenever a discussion was held with any person who might be faced with disciplinary action, criminal prosecution or civil litigation arising from his or her involvement in the alleged activities, such person was fully informed that there was no obligation on her or him to answer any questions or to co-operate in any fashion with the enquiry. Witnesses were also informed of their right to legal representation and to refuse to answer any question, which they felt, might elicit an incriminating answer. Apart from one isolated instance, not a single witness refused to answer any question.
17.
All the interrogations, which I conducted, of persons who might potentially be faced with disciplinary or civil steps or a criminal prosecution were attended by officers of the Commercial Crime Unit of the South African Police Services. Every witness' attention was specifically drawn to the fact that police officers were present and might use the material, which was obtained during the interrogation for purposes of a subsequent criminal prosecution.
EDUCATIONAL CONCEPTS, STRUCTURES AND STATUTES
18.
Prior to embarking upon an analysis of the factual occurrences, which form the subject matter of this report, it is useful to define the educational concepts, structures and statutory provisions against which the facts will have to be interpreted.
This examination is at the moment the most important examination in the school education system. It is held at the point of withdrawal, which forms the end of 12 years of schooling for the majority of learners in South Africa, and certainly for all those learners who intend to pursue a further or higher education qualification.
The senior certificate examination serves as an important entrance criteria into higher education.
The Minister of Education is, in terms of the National Education Policy Act, Act 27 of 1996, obliged to ensure that "the standards of education provisions, delivery and performance throughout the Republic be monitored and evaluated by the Department (the national Ministry) annually or at other specified intervals, with the object of assessing progress and complying with the provision of the Constitution and with national education policy".
This includes the senior certificate examination.
In terms of the Constitution and in terms of the National Education Policy Act, 1996, the Minister of Education is responsible for norms and standards in education. It is the function of Me provincial education authorities to ensure the actual provision of education. They are also responsible for the running of schools.
The South African Certification Council (SAFCERT):
The South African Certification Council is created by the South African Certification Council Act, Act 85 of 1986. It is responsible for:
".... control over the norms and standards of subject matter and examination, and for the issuing of certificates, at the different points of withdrawal in school and technical college education and non-formal education; and to provide for the conducting of common examinations ...."
(Preamble to the Act).
19.
In terms of section 9 of the Act, and subject to the general policy determined in terms of section 2(1) of the National Policy for General Education Affairs Act, Act 76 of 1984, SAFCERT issues certificates in the prescribed form to candidates who in a subject or all the subjects at a point of withdrawal (such as the senior certificate examination conducted by the Mpumalanga Province) have complied with the norms and standards prescribed by the council in the examinations conducted by an examining body which in the opinion of the council:
20.
In order to be able to properly fulfil its functions, SAFCERT monitors all examinations conducted under its aegis by statistical analysis, and prepares a statistical prediction of the marks, which are set as a norm for current and future examinations. This norm is based upon the marks obtained by candidates in the same examination in the previous five years, adjusted for potential improvement and takes into account all other relevant circumstances.
21.
Once the raw marks of an examination are received, they are statistically captured and in the so called ogiving process are compared to the norm predicted by the council for the current examination This process is performed by the exanun~g body and by members of SAFCERT's statistical committee.
22.
The Mpumalanga Education Department and all other provincial education departments are examination bodies recognised by SAFCERT in terms of section 9 of the South African Certification Council Act, Act 85 of 1986. These departments must comply with the regulations promulgated in terms of section 18 of that Act and also the so called "other conditions" published by SAFCERT as part of the regulations. External moderators are i.e. appointed by SAFCERT in terms of these provisions.
23.
Part II of the regulations published by SAFCERT during July 1998 in terms of the Act, reads inter alia as follows:
"REQUIREMENTS FOR CONDUCTING EXTERNAL EXAMINATIONS
(2) In respect of an eternal examination to be conducted after 4 September 1992 an examining body shall -
- take adequate measures, including measures to combat irregularities in the examination venue and security measures for ensuring the secrecy of examination papers, to ensure the integrity of the examinations;
- ensure that each paper in an external examination is representative of the prescribed subject matter intended in regulation 4;
- If ordered by the council include a moderating instrument in the examinations;
- ensure that each paper in an external examination is moderated by at least one competent internal moderator ...."
24.
The "other conditions" include the following:
"The examination body must:
....
- Ensure that the moderation referred to in regulation 2(d) includes control of the standard of marking of examination answer scripts. Internal moderators are required to certify that the answer scripts have been marked according to the standard approved by the external moderators in the memoranda provided with the examination question papers;
- Adjust raw examination marks to conform to the parameters for mark distributions as determined by the Council;
- Take decisions on such adjustments at a meeting where at least two members of the council's committee for examination statistics are present, and with the concurrence of these members"
(The composition of the SAFCERT delegation at the standardisation meeting of the 28th of December 1998 has been challenged by the Mpumalanga Education Department. I deal therewith hereinbelow).
25.
SAFCERT provides external moderators to all provincial education authorities for the preparation of examinations in most subjects which are written for the senior certificate examination. Generally every subject, which is studied by a significant number of learners who sit the examination, is monitored by an external moderator who is appointed or provided by SAFCERT to the provincial authorities.
26.
The external moderators consider every examination paper prepared by the provincial examiners for each and every subject, suggest corrections, amendments and improvements and thereby ensure that the standard set by one provincial authority is the same as that set by the other provincial authorities in the senior certificate examination.
27.
SAFCERT is furthermore responsible for certifying that the senior certificate examination complies with the standards which meet the requirements for the senior certificate and with it, meet the requirements for entrance to higher education or further education.
28.
The Inter-Provincial Examination Committee is a subcommittee of the Committee of Heads of Education (HEDCOM), a structure which is created in terms of section 10 of the National Education Policy Act, 1996, which is a statutory committee consisting of the Heads of Education in all provinces.
29.
IPEC consists of representatives of all provincial education departments, who are usually a member or members of top management. IPEC was created as a subcommittee of HEDCOM in 1997, after serious administrative problems were identified in the 1996 senior certificate examination, when the provinces assumed responsibility for the examination for the first time. IPEC meets on a regular basis and provides an opportunity for all provincial education authorities to exchange expertise, experience, knowledge and know-how in regard to the running and preparation of examinations, and in particular the senior certificate examination.
30.
The administration of IPEC falls under the Directorate: National Examinations of the national Ministry of Education. It is responsible, inter alia, for the development of the National Policy on the Conduct of the Senior Certificate Examinations as it relates to the provincial education departments. This policy has been developed in close co-operation with all provincial education authorities over the past two years and is presently in its final draft form. The final draft has been accepted in all respects, which are relevant to this enquiry, by all provincial authorities, including the Mpumalanga Provincial Authorities.
The Provincial Education Authorities have been Wised as examining bodies in terms of the SAFCERT Act. Consequently, a provincial education authority sets its own examination by:
31.1 Appointing its own examiners and internal moderators;
31.2 The internal moderator i.e. controls the manner and fashion in which the examiners mark examination scripts and may make adjustments to the marks given by examiners. A moderator should consider candidates who are above average, average and below average and may effect corrections or adjustments to the marks given by the examiners in the examination scripts during the examination process. These adjusted marls must be clearly indicated in a different pen, usually green, in the examination script;
31.3 The examiner or chief examiner prepares an examination paper together with a marking memorandum which is proof-read and then submitted to the internal moderator who controls whether it complies with die syllabus and standard;
31.4 The examination paper is submitted to the external moderator who is appointed by SAFCERT;
31.5 It is corrected after the external moderator has considered the examination paper and the marking memorandum which is prepared and printed during the course of the year;
31.6 The paper is then distributed to the various schools and other centres where the examination is written;
31.7 After the examination scripts are collected at central examination points where the examination scripts are marked;
31.8 The marking is moderated by the internal moderator,
31.9 The internal moderator considers the standard of marking and the general performance of the candidates, and assesses whether the examination papa was properly understood by the candidates;
31.10 The internal moderator may, if it appears that there are errors, ambiguities or other problems in a senior certificate examination paper (e.g. that the paper is too long), suggest in his moderator's report to the Provincial Education Department that the marks obtained by some or all candidates in the particular subject be adjusted, upward or downward, because of any problem which may have been identified in this fashion;
31.11 The moderators' reports are considered by the Provincial Education Department and should be discussed at the standardisation meeting, if necessary;
31.12 Once all the examination papers have been marked and all marks have been captured, the top management of the Provincial Education Department meets with a delegation of SAFCERT in terms of the "other conditions" for the senior certificate examination which, are conditions determined by the SAFCERT in terms of its Statute. The relevant provisions have already been quoted above;
31.13 Marks which have been obtained by the candidates in the senior certificate examination in all subjects are considered during the standardisation meeting, and, if necessary or justified, are adjusted in the light of all the factors which SAFCERT and the relevant provincial authority can take into consideration;
31.14 It must be underlined that the statistical predictions of the probable results prepared by SAFCERT are of prime importance in determining how far the results obtained in the senior certificate examination diverge from the predicted or expected norm;
31.15 It must also be emphasised that adjustment of marks of an examination result affecting all the candidates in a particular subject can only lawfully be effected at a standardisation meeting properly composed of representatives of the Provincial Education Department and SAFCERT;
31.16 The functions of examiners and internal moderators, and the process of setting and marking an examination apply, with minor modifications, uniformly in all nine provinces. They reflect the examination structure and draft national policy developed by IPEC with the active co-operation and agreement of the Provincial Education Authorities.
31.17 The draft national policy is explicit in regard to mark adjustments. It reads as follows:
MARK ADJUSTMENTS
Mark adjustments are done by the Examining Body in conjunction with SAFCERT alter the capture of the marks. The distribution of raw marks on a data set should be provided at the mark adjustment meeting. A set of graphs that represent the distribution of the raw marks and the adjusted marks is also required at this meeting."
31.18 The policy complies with the statutory requirements determined by the conditions published by SAFCERT as aforesaid.
32.
32.1 Like other provincial education departments, the Mpumalanga Education Department is responsible for setting its provincial examination which is administered in accordance with the draft national policy and the relevant statutory provisions.
32.2 The School Education Act (Mpumalanga), Act 8 of 1995, empowers the member of the Executive Council in Section 105 thereof to make regulations for any matter which may or must be determined by regulation.
32.3 On the 1st of July 1997, the MEC for Education in Mpumalanga, Mr David Dabede Mabuza, published regulations in a Provincial Gazette Extraordinary, No 247, relating to examinations.
32.4 These regulations are applicable to all examinations in Mpumalanga including the 1998 Senior Certificate Examination.
32.5 Regulation 20 thereof reads as follows:
"EXAMINERS AND MODERATORS:
20. (1) the of the Department may -
- appoint an examiner, subject to the conditions, as he or she may deem fit to -
- set drag examination papers in the different subjects in which an examination is conducted;
- mark examinations answer books or conduct practical examinations;
- award marks to candidates for the subjects in which they wrote examinations; and
- appoint a moderator, subject to the conditions, as he or she may deem fit, to
- moderate draft examination papers;
- moderate examination answer books in respect of an examination and evaluate the marks that have been awarded to a candidate by the examiner; and
- undertake the remarking of examination answer books;
- appoint an assistant examiner, subject to the conditions as he or she may deem fit, to mark examination answer books or conduct practical examinations;
- enter into general or specific agreements with an examiner or a moderator for the efficient administration of the examinations;
- terminate the services of an examiner or a moderator at any time; and
- amend or substitute the conditions of appointment referred to in paragraphs (a), (b) and (c), with the exception of remuneration' at any time.
(2) In addition to subregulation (1), the following conditions shall apply to examiners and moderators and anyone who assists them in the execution of the duties:
- The contents of a draft question paper, the memorandum on it and the marks obtained by a candidate shall not be disclosed to unauthorised persons;
- an examiner or a moderator shall not hold the copyright in a draft question paper or a question paper or memorandum drawn up on behalf of the Department;
- the Head of the Department shall not be obliged to have the examination scripts in a particular subject marked by the examiner who drew up the question paper or to have such examination scripts moderated by the moderator who moderated the question paper;
- the Head of the Department may, at his or her discretion, amend and use a question paper or a memorandum without consulting the examiner or moderator concerned;
- question papers shall be set in accordance with the syllabi and conditions that have been approved by the Department for the course concerned;
- the moderator shall asses, and comment on the draft question paper and the memorandum objectively and ensure that no language or any other mistakes occur in the draft question paper, that it conforms with the syllabus and the course requirements, and that the required standard has been maintained. Should that not be the case, he or she may, at his or her discretion, submit for the proposal for amendment or improvement to the examiner (sic): Provided that, should the moderator and the examiner not be able to reach agreement, the head of the Department will make the final decision on such points of disagreement
- a file containing the syllabus, draft question paper and a memorandum shall be kept intact, and correspondence between the examiner and the moderator shall be kept in a relevant file;
- a file containing a draft question paper and a memorandum shall be posted by registered mail after the envelope containing such file has been securely sealed;
- when marking and moderating examination answer books, examiners and moderators shall exercise the greatest care and maintain the highest degree of impartiality to ensure the objective allocation of marks to a candidate;
- if the number of examination scripts for a particular subject exceed the number prescribed by the Department, per examination, the examiner shall, with a view to expediting the marking and with the approval of the Head of the Department, make use of assistant examiners;
- an examiner shall be responsible for the work of his or her assistant examiners and shall himself or herself mark the number of scripts prescribed by the Department per examination in a particular subject and shall check a percentage prescribed by the Department of those scripts marked by the assistant examiners;
- a moderator shall write a report on the form "Moderator's Report", on the standard of marking in the subject for which he or she is responsible, and in it he or she shall make specific proposals and support his or her reasons for finding it necessary to depart from the examiner's allocation of marks; and
- after any examination, an examiner shall, on the form "Examiner's Report", report on each question paper for which he or she is responsible, provide the statistical data required by the Department and make general remarks and suggestions, to be communicated to the relevant educational institutions for improving the presentation of the subject."
32.6 Of particular importance for the role and function of moderators are regulation 20(1)(b)(i), (ii) and (iii), regulation 20(2)(f) and in particular regulation 20(2)(1), which determines that a moderator shall, in his moderator's report,
" .... make specific proposals and support his or her reasons for finding it necessary to depart from the examiners allocation of marks ...."
32.7 A moderator is clearly not empowered by the Mpumalanga regulations to do more than to suggest, to the Department of Education, an adjustment of marks which may be recommended for reasons of the nature indicated above.
32.8 The Mpumalanga Education Department provides moderators with pre-printed forms, headed "Mpumalanga Education Department Internal Moderator's Report" which form makes specific provision for comments by the internal moderator in respect of the standard of marking and contains a specific question dealing with the internal moderator's recommendation of an adjustment of the marks. A specimen copy of the pre-printed form is annexed as ANNEXURE "A" to this report.
32.9 The Mpumalanga Education Department has, since 1996, provided its examiners and moderators with a so called markers' manual in respect of marking of examination scripts, which memorandum sets out the responsibilities of chief markers, examiners and moderators. Subparagraph under the heading:
"1.2 DUTIES OF CHIEF MARKERS
1.2(h) ....:
"Arrangements for the moderation of scripts by internal moderators:
- The Chief markers will be supplied with the list of dates for moderation.
- The chief markers will select the scripts as follows, highest, average and below average.
- After moderation adjustments should be done there-and-then." (sic)
32.10 Clause 7. "MODERATING OF MARK SCRIPTS"
of the manual provides:
"7.1 The moderator is responsible for moderating marked scripts.
7.2 METHOD
Internal moderators:
- Moderating procedure
- moderators remark all scripts, using the question paper and memorandum provided by the department. The moderators will moderate at the centres three days after the start of marking.
- the mark which a moderator has allocated for each question must appear inside the script as well as on the front cover of the scripts. Moderators must use "green" ink."
32.11 In
"7.3 MODERATORS REPORT"
the manual determines the following:
"Moderators are to complete the moderator's report and provide a clear recommendation as to whether the marks of the marker should be accepted or not. The moderator's report must reach the Department within 3 weeks after the date of the examination according to the examination time-table."
32.12 These are the only provisions in the manual dealing with the role and function of moderators.
32.13 The Mpumalanga province uses and applies an examiners' manual which was already applicable in the former Eastern Transvaal Province. It contains, in clause 1.2(k) thereof detailed provisions regarding the mark sheets to which the marks candidates achieve in the examination must be transferred. It is quoted here in full:
"(k) Completing mark sheets
The chief examiner/marking examiner is responsible for the accuracy of mark sheets. The correct way to complete mark sheets is as follows:
- Fill in the numbers "999" in the mark column opposite the examination number of each candidate shown as absent.
- Transfer examination marks from scripts to mark sheets with meticulous care. Please note the "maximum marks" on the mark sheets.
- Make sure Mat each candidate's examination Member as it appears on the mark sheet corresponds with the number on the examination scripts before transferring the marks to the mark sheets.
- Add up all the marks on the mark sheet, including "999", and write clown the total in the space provided on the mark sheet.
- Recalculate this total to ensure that it is correct. (Every mark sheet must be double-checked, and the same total must be arrived at before it may be considered to be correct).
- If this fatal remains incorrect, the computer will reject the entire mark sheet. It is very difficult to make corrections at this late stage.
- Enter the marks of candidates whose smirk numbers do not appear on the mark sheet on a blank mark sheet. Please ensure that the name of the subject, the relevant question paper and the centre number, as well as the candidate's examination number/ID number, appear on the blank mark sheet.
- Each mark sheet has a special number and the examination numbers of the candidates on the list are linked to this mark sheet number. Therefore, one cannot copy the mark sheet of one subject and use it for another subject.
- Mark sheets must be handed in as the marking proceeds and must not be kept until the marking is finished."
32.14 Clause 7 of the Eastern Transvaal Province Examiners' Manual deals with the moderating of marked scripts and reads as follows:
"7. MODERATING OF MARKED SCRIPTS
7.1 The moderator is responsible for moderating marked scripts.
7.2 METHOD
- The Department will forward a sample of the marked scripts, an examination paper and its memorandum to the moderator.
- The sample of scripts will include the following:
- Scripts from all the markers (not less than 30 or more than 100 scripts)
- Scripts of candidates who obtained 70% or higher marks
- Scripts of candidates who obtained approximately 50%
- Scripts of candidates who obtained approximately 40%
- Scripts of candidates who obtained 30% or fewer marks.
- Moderating procedures
- Moderators remark all scripts which are sent to them, using the question papa and memorandum provided by the Department.
- The mark which a moderator has allocated for each question must appear inside the script as well as on the cover page of the script. Moderators must use "green" ink.
- Remuneration of moderators:
Moderators are to be remunerated per moderated script according to the approved tariff list. Standardised fees are payable for the remarking/moderation of scripts.
7.3 MODERATOR'S REPORT
Moderators are to complete the moderator's report form 00/ET 179 and provide a clear recommendation as to whether the marks of the examiner should be accepted or not. The moderator's report must reach the Department within three (3) weeks after the date of the examination according to the examination time-table."
32.15 In 1996, the Mpumalanga Department of Education published an examination policy document. This policy document does not contain any further provisions relating to the marking or moderating of examination scripts.
32.16 It will be noted that the statutory provisions and internal guidelines determined by the Mpumalanga Education Department differ in no way whatsoever from the provisions of the SAFCERT Act and the drag national policy. They are furthermore in accordance with the existing practice followed in all provinces even prior to 1996.
THE CONDUCT OF THE SENIOR CERTIFICATE
EXAMINATION IN MPUMALANGA IN 1998:
AN ASSESSMENT
33.
In what follows, I provide an assessment of the conduct of the 1998 senior certificate examination in Mpumalanga and the aftermath thereof. The narrative is of necessity a personal one. It reflects the facts which I regard as having been established with sufficient certainty to be recorded as such, always subject to the proviso that further enquiries are still being conducted and other aspects may emerge from them. I must also underline that some of the matters which I record may not be common cause and may not necessarily be accepted by everybody involved in the process as correct in each and every respect. I am satisfied, however, that this assessment is fair, properly motivated and supported by documentary and oral evidence. I should add that the most significant facts emerged from discussions which I held with senior officials and other employees of the Mpumalanga Education Department and some moderators and examiners. Most of these discussions were recorded on tape and transcribed. Both tapes and transcriptions will be handed to the Honourable Minister together with this report. I would urge that they be regarded as confidential and sub judice while the investigations of the South African Police are continuing.
34.
The general preparation for the senior certificate examination of 1998 in Mpumalanga proceeded in accordance with National Policy and with the assistance of IPEC and the Directorate National Examinations of the Department of Education, without any apparent serious problem. In fact educators and administrators alike were of the view that, contrary to 1996, the administrative preparations and conduct of the examinations were successful and effective.
35.
Shortly before the start of the examination in November 1998, the Mpumalanga Education Department held one or more workshops, ar~anBed by senior officials.
36.
This workshop was attended by most, if not all moderators and examiners. The examination manual was distributed and discussed.
37.
Several moderators and examiners suggested to me that during this workshop they were informed that a moderator had the power and the authority to effect an overall adjustment of the marks achieved by all the candidates in the particular subject, in other words to perform the function of the adjustment of marks on his or her own, without prior reference to the Provincial Education Department and without reference to the standardisation meeting with SAFCERT. In fact, the moderators were allegedly informed that they had, in effect, the power to usurp the function of the standardisation meeting.
38.
This communication was made to the moderators, according to some of them, by one or more senior official(s) of the provincial department. As the police investigations have not been concluded, the identity of the person or persons involved will not be disclosed.
Reliance for the existence of this power on the part of the moderator was allegedly placed on the provisions of paragraph 1.2(h) of the manual, quoted above, which, so it was alleged, was interpreted to mean that an adjustment of marks allocated to individual candidates on their scripts included the power to adjust the marks of all candidates in that subject.
39.
Moderators were apparently further told that, if they adjusted the marks of all candidates, this should be effected upon the mark sheets to which the marks were transferred at the examination centre. The adjusted marks should be entered into the second column of the mark sheet either by the moderator himself or herself, or by the chief examiner who should be instructed by the moderator to do so.
40
The senior official(s) denied having given an express instruction to this effect to moderators, but at least one conceded having been aware of the fact that moderators had, during the senior certificate examination, adjusted the marks of all candidates in a considerable number of subjects, including Afrikaans, biology, geography, history and others. That official also admitted that great emphasis was placed on paragraph 1.2(h) of the manual during the workshop.
41.
Moderators of the affected subjects confirmed that they had indeed upwardly adjusted the marks of all candidates relying upon the provisions of the manual and the instruction which was allegedly given at the workshop. The marks which were increased, were recorded on the mark sheets in green ink, as marks which had been duly moderated. The mark sheets were sent to Middelburg, where the adjusted results were captured from the mark sheets onto the computer.
42.
The three moderators I met and the relevant official agreed that no moderator had adjusted marks during the 1996 or 1997 senior certificate examination. This is remarkable, particularly in the light of the fact that the 1996 examination did not yield good results and that the manual upon which reliance was placed for the purported existence of the power to adjust marks on the part of the moderators, was also used in 1996 and 1997.
43.
The individual moderators were at a loss to explain their actions in the light of the express provisions of the regulations, of which they should or must have been aware, and of the express provisions of the pre-printed moderators' report form, which clearly states that recommendations in regard to an adjustment of marks are to be made to the provincial education department. Some vain attempts were made to explain that the recommendations were in fact made to the examiners, but it soon became clear that in those instances where the examiners were told to effect the increase of the marks on the mark sheets, this was regarded by both the moderator and the examiner as an instruction to perform a function which the moderator would otherwise have performed himself or herself.
44
When confronted with these facts, one official suggested that, while the moderators had the power to increase the marks, they still had to report to the provincial education department and to the standardisation meeting, through the department, that the marks had been increased and that such report would be couched in the form of a recommendation.
This explanation is too far-fetched to be worthy of further consideration.
46.
Not all the moderators who effected adjustments of the marks, (which adjustments were invariably upward),
recorded this fact in their moderators' reports.
47.
It is possible that several senior officials of the Mpumalanga Education Department were aware of the fact that moderators had upwardly adjusted marks across the board in a number of subjects. I should note that Mr Mello, the Acting Head of the Mpumalanga Education Department, and the Head of the Mpumalanga Education Department, Mrs Sithole who is presently on study leave, both denied emphatically that they had been informed of the true state of affairs. It was also emphasised that the MEC, Mr Mabuza was unaware of any wrongdoing. I am unaware of any ground upon which these denials can be doubted.
48.
The exact number and identity of the officials in the Mpumalanga Education Department who were aware of the true state of affairs will have to be established by the investigation of the South African Police Services.
49.
I should also add that, in spite of the fact Mat I requested an opportunity to meet all the moderators in those subjects which had been identified by Dr Calitz as those in which marks had been increased across the board, only the moderators of biology, history and geography attended the meeting which had been arranged for Sunday the 28th of March 1999. The moderators of the other subjects which were affected have consequently not yet had a chance to explain their actions. Prima facie, however, their actions are as unlawful as those of the moderators to whom I could speak.
50.
The upward adjustment effected in biology was motivated in a particularly significant way. The internal moderator for this subject wrote the following recommendations in his report for the standard ten biology higher grade November 1998 senior certificate examination:
"RECOMMENDATIONS:
This observation has been done within a very small sample of markers and very small sample of candidates, partly due to the time limitation of the time allocated for moderation and that within such time both the HG and SG papers be observed.
It is within these limits that it is recommended that plus minus 20% marks be credited across the spectrum, to avert disaster of provincial and/or national standing."
51.
It is clear that the results in biology would have been very poor indeed without the 20% adjustment. SAFCERT's provisional view is that the true raw marks in this subject may indeed be up to 9% below the norm.
52.
When the standardisation meeting took place on the 28th of December 1998, and when the extraordinary increase in the results of individual subjects and the general pass rate became apparent, not one of the attending officials disclosed the fact that the raw marks included adjustments of up to 20% effected by moderators to the overall results. At least one of the senior Mpumalanga officials attending this meeting was fully aware of what had happened.
53.
In terms of law and practice, the SAFCERT representatives must have been informed at the standardisation meeting on the 28th of December 1998 of the true state of affairs. Instead the senior official or officials who was/were fully aware of all facts, not only failed to disclose the actions which had been undertaken by the internal moderators, but in addition, explained the positive results which had apparently been achieved with reference to the additional efforts the Mpumalanga Education Department and its teachers had made to prepare the learners for the examination.
54.
When the first critical questions were asked in public, the provincial spokesperson publicly defended the results, again without any reference to the true state of affairs being made by those in the know. Others, including senior educators and politicians came to the defence of the Mpumalanga Education Department, genuinely under the impression that the excellent results had been achieved by hard work, dedication and enthusiasm.
55.
At the standardisation meeting the raw marks were observed to be far above the expected norm and had to be adjusted downward even without knowledge of the unlawful increase effected by the moderators.
56.
The adjusted results reflected that 30 646 candidates of the 42 069 who had sat for the examination passed, while 18% of the pupils obtained senior certificate examination exemptions (university entrance qualifications) virtually double the 9,3% who had achieved this result in 1997.
57.
In spite of the fact that a positive explanation had been provided during the standardisation meeting of the grounds upon which the increase of the marks could be explained, Dr Calitz remained troubled. On the 30th of December 1998, he phoned Dr Ihron Rensburg, the Deputy Director General of the national Department of Education to share his doubts about the Mpumalanga results with him. Dr Rensburg in turn informed the Acting Director General of the national Department of Education, Mr Thami Mseleku who telephoned the Head of the Mpumalanga Department of Education, Mrs Faith Sithole and discussed the potential problem with her
58.
Mrs Sithole telephonically traced Dr Calitz to his home on the 31st of December 1998 and discussed the issue with him. She suggested that the examination moderation process should start immediately.
59.
It should be added at this juncture that SAFCERT annually moderates the examination of the various provinces after the results have been made public, usually within three months after publication of the results.
60.
Mrs Sithole indicated to Dr Calitz that she was prepared to withhold the publication of the results until the 7th of January 1999, the date upon which all provinces' senior certificate examination results had to be published, according to a HEDCOM decision, in order to enable SAFCERT to conduct the moderation process and to satisfy itself that the results were genuine.
61.
Unfortunately, Dr Calitz was of the view that the time available for such process was too short, because of the new year long weekend and because of the fact that many of SAFCERT's staff members were on holiday. He did undertake, however, to start the moderation procedure immediately after the publication of the results.
62
It is common cause that Dr Calitz was aware of the fact that Mpumalanga would publish its senior certificate examination results together with the rest of the country and that he did not advise Mrs Sithole against such a course.
63.
During the period the 30th of December 1998 and the 4th of January 1999, the top management of the national Ministry discussed the problem. Various options were considered, including the possibility o advising the Mpumalanga Education Department not to publish the results until the moderation process had been finalised or to publish the results and investigate any alleged irregularities at a later stage and to request SAFCERT to commence the moderation procedure immediately. Eventually, when Mr Mseleku spoke to Mr Mello on or about the 4th of January 1999 informing him of the fact that the national Department would be prepared to accept either option, he was informed that, pursuant to the discussion which Mrs Sithole had had with Dr Calitz on the 31st of December 1998, the decision had been taken to publish the results with the full knowledge of the SAFCERT officials and to commence the moderation process as soon as possible thereafter.
64.
It is a pity that the option which Mrs Sithole had offered to Dr Calitz, namely to withhold publication until the moderation process had been finalised, could not be, or was not, accepted, as a huge embarrassment for all parties concerned could have been avoided if the moderation procedure had been performed immediately.
65.
Mrs Sithole was in the company of the Mpumalanga Education Department's top management team when the aforesaid discussion took place. At least one senior official implicated by this investigation followed her discussion with Dr Calitz, but did not disclose that the excellent results of the Mpumalanga matriculants bad been achieved as a result of the unlawful extensive upward adjustment of marks.
66.
Mrs Sithole is emphatic that she did not know of the true state of affairs and was not informed thereof until it was revealed during a meeting conducted by myself with her department's top management on the 24th of March 1999, to which reference will be made hereinbelow.
67.
The publication of the results on the 7th of January 1999 created a public stir. There was considerable joy and satisfaction on the part of the Mpumalanga authorities, while, as I have already shed, skepticism greeted the results in other circles.
68.
When SAFCERT embarked in the new year upon the moderation action, the principal focus fell on biology in which subject the marks appeared to be the most suspicious. The external moderator, Mrs Crowe, was requested to investigate the marks which had been allocated in this subject. For this purpose, Dr Calitz requested a number of scripts from the Mpumalanga Education Department in order to make them available to Mrs Crowe and to investigate them himself.
69.
Among the scripts which Dr Calitz investigated he found indications of cover pages having been replaced and of marks apparently having been altered. Dr Calitz had requested the scripts of certain specific candidates who had been allocated a specific mark of, e.g. 82 out of 300. As the marks in biology higher grade had, however, been increased across the board by 60, the real result of the candidate concerned was 22 out of 300. Apparently, when Dr Calitz requested the relevant scripts, attempts were made to find scripts in which the actual mark scored by the candidate amounted to 82 and to substitute the cover page of the candidate whose script had been requested, on the cover page of the script of the candidate who had scored a genuine 82.
70.
During my investigation I heard evidence from sources, which because of the continuing police investigation I would not like to identify at this stage, that certain officials of the Mpumalanga Education Department, including at least one senior official, were observed after the publication of the examination results apparently re-writing several examination scripts and shredding others. All the persons I interacted with at the Mpumalanga Education Department denied any knowledge of such an activity. The matter is still being investigated by the South African Police.
71.
Dr Calitz thereafter called for further scripts from the Mpumalanga Education Department. This request was initially denied because the department insisted on the moderator's report being provided to itself prior to being prepared to supply further scripts to Dr Calitz.
72.
On the 21st and 22nd of January 1999, SAFCERT held a meeting at the Kempton Park Conference Centre, of which the provisional minutes, which have not yet been certified correct, were provided to me. They are annexed hereto as ANNEXURE "B". It is clear that the council was perturbed not only about the irregularities which had occurred in Mpumalanga, but also about the fact that the problem concerning the results had not been discovered in the standardisation meeting on the basis of statistical evidence. I quote from the minutes:
"Prof Fatti pointed out that it was not possible to pick up the overall pass rate on evidence presented in the standardisation meeting, since overall results calculations had not been carried out at that stage. Mr Moll pointed out that SAFCERT administrative procedures were not tight enough during the standardisation process, in particular with regard to the recording and official sanction of decisions. Provinces kept their own records, however informally, but there was no formal SAFCERT documentation on decisions reached. SAFCERT therefore had to accept its share of the blame for the situation that had arisen in Mpumalanga. Dr Ngijima pointed out that SAFCERT had received Mpumalanga documents relating to ogiving on 23 December, five days before the standardisation meeting, which should have given SAFCERT sufficient time to pick up the problem. In response the executive officer emphasised that although there had been nothing technically wrong with the results, he had realised that another kind of investigation would be necessary to determine the full cause of the improved raw marks."
73.
At the same meeting, Mr Mello presented the view of the Mpumalanga Education Department that the latter had been very badly served by SAFCERT. He underlined that the Mpumalanga Education Authorities regarded the following processes as unsatisfactory:
73.1 The SAFCERT CEO had received the statistics five days before the ogiving date, namely on the 23rd of December 1998, which had given SAFCERT sufficient time to study and understand the statistics and comparison table;
73.2 During the standardisation meeting, concerns had been raised by Dr Calitz in regard to the continuous assessment marks for biology higher grade and standard grades, and that there were no learners who had scored a zero (0) mark in history, both higher grade and standard grade;
73.3 The matter had been discussed, and it had been suggested that the continuous assessment marks in biology (which had not been taken into consideration during previous years) could be removed. Dr Calitz indicated however that there was no need to do that for the 1998 examination, but that an investigation would be required of the role which these marks would fulfil in the standardising procedures;
73.4 When Dr Calitz and those accompanying him left the standardisation meeting, he expressed the opinion that the process was satisfactory, remarking that there would be a slight increase in the pass rate;
73.5 The Mpumalanga Education Department was concerned that the increase might not be as slight as projected by the statisticians;
73.6 Even though the Mpumalanga Education Department had, through Mrs Sithole, offered to the SAFCERT CEO to co-operate in attending to SAFCERT's concerns by performing the moderation process immediately, Dr Calitz had still maintained that the results could be announced as planned on the 4th of January 1999;
73.7 The Mpumalanga Education Department was furthermore angered by the fact that Dr Calitz did not raise his concerns officially with the Mpumalanga Head of the Education Department or the Mpumalanga MEC for Education, but that the Mpumalanga Education Department had heard thereof through the national Department of Education;
73.8 Dr Calitz had not availed himself of the second opportunity given to him by the Mpumalanga Education Department to intervene in the situation;
73.9 As stated before the Mpumalanga Education Department has also criticised the composition of the SAFCERT delegation to the standardisation meeting, claiming that Mr Talbot should not have been included as he is not a member of the council. The SAFCERT Act does empower the council however, to appoint persons to committees who are not themselves members of the council. This power is contained in section 5(1)(a) of the Act. This particular point of criticism is consequently not valid.
74.
Although a number of rumours circulated that other irregularities may have occurred, particularly after SAFCERT called for a sample of 1200 examination papers to control the marks and found that some of the examination papers had been tampered with, early suspicion centred upon the person or persons responsible for the transfer of the marks from the marls sheets to the computer.
75.
On 23rd February 1999, SAFCERT informed the Honourable Minister of Education, Dr Sibusiso Bengu, that puma facie proof existed of tamping with the examination results. On the 26th of February 1999, the national Dept of Education announced that a full scale investigation into the examination results and the manner and fashion in which the examination had been conducted, would be launched by SAFCERT while a criminal charge of fraud, alternatively forgery and uttering, would be laid with the South African Police Service.
76.
At the same time I was appointed to report as soon as possible upon:
76.1 the process and progress of the investigations, which it was my
function to co-ordinate, setting the goals and objectives;
76.2 to give legal advice and assistance to the investigating bodies and to protect the
rights of candidates;
76.3 to communicate progress of the investigations to the national Department and to write
a report which must indicate:
76.3.1 whet the extent of the irregularities is;
76.3.2 who is affected by the irregularities;
76.3.3 who is responsible for the irregularities;
76.3.4 what the consequences of such irregularities are;
76.3.5 what steps are to be taken to ensure that the integrity of the system is not jeopardised;
76.3.6 how the candidates' rights are to be protected; and
76.3.7 what steps can be taken to avoid a recurrence in future.
77.
In spite of the developments haying taken place as set out above, and in spite of the intense public speculation about the senior certificate examination, the senior Mpumalanga official or officials remained silent, as did all the moderators and examiners, about the moderators' actions. It is difficult to understand why the matter was not cleared up immediately once SAFCERT realised that marks which had not been allocated in the ordinary marking process had been added to the candidates' results. It was public knowledge that SAFCERT was convinced that there had been tampering with the examination results, which cast an immediate doubt upon the entire examination system not only of Mpumalanga, but of South Africa as a whole. Rumours were rife, and many innocent people were suspected of complicity in nefarious activities. Yet the senior official or officials, the moderators and the examiners kept mum.
78.
On the 8th of March 1999 I had the first meeting with the top management of the Mpumalanga Education Department in Middelburg, which was attended by the MEC.At this meeting, no mention whatsoever was made of the fact that marks had been added by moderators, in spite of the fact that I had come to Middelburg primarily to discuss the fact that marks had in fact been increased. A lengthy discussion was held concerning the allegations that those employees of the department who had captured the marks were responsible for the unlawful increase thereof, and arrangements were made to interrogate the officials of the Provincial Education Department who had been involved in the capturing process. Still nothing was said about the actions which had in fact taken place and of which the relevant senior official or officials were fully aware. During this meeting, the MEC and the other members of the Department's top management team expressed considerable bitterness about the role played by SAFCERT in general, and Dr Calitz and Mr Talbot in particular. The point was made with force and conviction that, had SAFCERT seen its way clear to advise against the publication of the senior certificate examination results or had SAFCERT embarked upon the moderation process immediately, the most unfortunate consequences which have now arisen as a result of the fact that the results were published and that matriculants were provided with incorrect marks, could have been avoided.
79.
I agree that this is a valid point which must be addressed. Speedier action on the part of SAFCERT could have avoided the present disaster at least partially, although this does not in any way diminish the seriousness of the fact that an orchestrated, organised unlawful action was conducted at a very high level in the Mpumalanga Education Department in respect of the senior certification examinations. Nor does it detract from the fact that the Mpumalanga Department did not withdraw the results of its own accord once it become aware of existing irregularities, and still has not done so.
80.
At the meeting of the 8 March 1999, as well as the subsequent meeting which took place on the 24th of March 1999, SAFCERT was father accused of a political agenda in the light of the fact that opposition parties became aware of SAFCERT's report to the Honourable Minister before this was discussed with the Mpumalanga Education Department. Dr Calitz surmises that word of existing irregularities leaked to the media following an IPEC meeting in January 1999, when the results were termed "statistically impossible". This fact was published for the first time in Rapport on 14 February 1999. Dr Calitz denies any complicity in the leaking of these facts.
81.
The resolution of this problem falls outside the ambit of this enquiry.
82.
The publicity, unfortunate though it was for the integrity of the education system, did however highlight the existence of the problem and the national Department deserves praise for the speedy and public manner in which steps were taken to address the problem, to rectify the irregularities and to ameliorate the consequences.
83.
It is disconcerting, however, that a provincial education authority should regard the statutory quality and assurance body as an enemy and a political opponent. This is an issue which must be addressed by both bodies immediately in the interests of a healthy education and examination system.
84.
As a result of the discussions on the 8th of March 1999 and following upon further enquiries, a meeting was arranged for the 24th of March 1999 during which I interviewed all the Mpumalanga department's officials who had assisted with the capturing of the marks. In addition, I held further discussions with the MEC and top management, and confronted top management with allegations that one or more of its members had been involved in the tampering with examination scripts, which allegations were abounding at that stage. They were vigorously denied, but during the latter part of the meeting a senior official volunteered that moderators had the right to increase marks of candidates. Upon my immediate enquiry as to which provision allowed moderators to act in this fashion, reference was made to the examination regulations which I have quoted above.
85.
I requested a copy thereof and arranged for a further meeting with senior officials and the moderators and examiners concerned on the 28th of March 1999.
86.
It must be underlined that this statement of the senior official on the 24th of March 1999 was the first indication, to the best of my knowledge, which was ever any member of the Mpumalanga Education Department of the fact that moderators had been allowed to increase students' marks across the board.
87.
At 14h00 on the 28th of March 1999, I met certain senior officials and some moderators and examiners, again in Middelburg. All persons who were interrogated were duly warned that they were not obliged to speak. Two police officers, Superintendent du Plessis and Captain Joubert of the Commercial Crime Unit, attended the meeting at my invitation as did Mr Andrè Reyneke as an expert in the field of examinations.
88.
It was during this meeting that the full extent to which moderators had been responsible for the unlawful adjustment of marks was placed on record. As I have already indicated, the explanation for their action and the reliance placed on the regulations or the manual is entirely unconvincing.
89.
No explanation has been offered for the fact that at least one senior official (and whoever else may have been aware of the true state of affairs, including the moderators and examiners) Ailed to disclose the full and true facts until the 28th of March 1999, and did so only after persistent and purposeful questioning.
90.
On the 24th of March l999 I requested a copy of all moderators' reports which were completed after the senior certificate examine. These I received, with the exception of the geography moderator's report. It turned out, however, that one of the history moderator's reports differed from a document purporting to be the moderator's report for the same paper which had been given to Dr Calitz, when he had asked for copies of the same moderators' reports.
91.
I confronted the moderator concerned, and a senior official with this disconcerting fact. It emerged that the document Dr Calitz had received had not been completed or signed by the moderator.
92.
Two of the original reports which were indeed prepared by the moderator, exhibited the feature that the number of the marks which he suggested should be added to the candidates' results had themselves been changed by a hand which the moderator could not identify. In both cases, the figure "2" or "20" had been changed from a "3" or "30". The moderator stated that this could have been done by himself, but he was not certain.
93.
It is impossible to determine at this stage why the additional moderator's report was issued, but it must be noted that that report, for which the moderator is not responsible, did not include a recommendation that the marks should be upwardly adjusted as did the one which the moderator in fact signed. The South African Police will have to establish why SAFCERT was presented with a document which, on the face of it, appears to be a forgery.
94.
In conclusion, it need only be remarked that the relevant senior official or officials, the moderators and the examiners must have been fully aware of the fact that their actions were unlawful. No other reasonable explanation exists for their continued silence in the face of the public outcry and the obvious detriment to which the Mpumalanga class of 1998 was subjected as a result of the disclosure that their marks were not genuine.
95.
I can now deal with the specific questions put to me by the Honourable Minister against the above background.
THE EXTENT OF THE IRREGULARITY
96.
The extent of the irregularities perpetrated by the moderators and examiners, and covered up by a senior official or officials, against whom the strong suspicion must exist that he, she or they was/were responsible in the first instance for arranging and organising the moderators' actions, is obviously considerable. The organised interference with the candidates' marks occurred at the one point in the system which was vulnerable to large scale tampering. Although various steps, methods and procedures have been built into the examination process to prevent the reamer writing the examination from indulging in untoward conduct, nobody expected the system to be undermined by those who were employed at senior level to protect and uphold it.
97.
The subsequent failure by those concerned to disclose the true state of affairs at the earliest opportunity contributed to the widening of the effect of the irregularities, as literally thousands of innocent students were informed that they had passed the senior certificate examination and/or had gained a university or technikon entrance result. These will now be disappointed and subjected to serious detriment once their true marks are obtained.
98.
It must be added that the large scale upward adjustment of marks is not the only irregularity which has been detected. I have referred to the tampering with examination scripts themselves already. This may well have been perpetrated in an effort to hide the original untoward activities.
99.
Furthermore, allegations were made that some schools at certain examination centres received generally much lower marks than they had received in the past or had expected to receive in this examination. Primary among these appears to be the Witbank High School, which sent a report to the Mpumalanga Education Department of which a copy is annexed hereto, marked ANNEXURE "C".
100.
During the meeting of the 28th of March 1999, a senior official alleged that there were at least prima facie indications of racism having been practised by certain examiners in the marking of exam scripts. With specific reference to the Witbank High School, the official alleged that some examiners had apparently purposefully awarded higher marks to learners from schools who were predominantly white in comparison to schools which were attended predominantly by black learners.
101.
As these allegations were made in the presence of the South African Police, I immediately requested Superintendent du Plessis and Captain Joubert to investigate these complaints to the hilt and to ensure that any examiner who was guilty of falsifying examination remarks with a racist motive, or any other motive, be arrested and charged.
102.
During a telephonic conversation in the late afternoon of the 2nd of April 1999, of which I kept a hand-written note, a senior official of Mpumalanga Department charged the SAFCERT again with a racist agenda. This conclusion was based on the following circumstances:
102.1 In the moderation process in previous years, examination scripts which were requested for moderation, were selected not by, or with reference to, the centre where the examination had been written but with reference to the candidates and the marks which they bad achieved, a practice which has been referred to before.
In this instance, however, scripts were requested for moderation with reference to centres, virtually all being centres with a predominance of black students who would then, if irregularities were detected, be the victims of the process rather than the pupils at those centres which were not moderated.
While I understand the concern, I trust that the SAFCERT investigation, which is nearing completion, will deal with the marks achieved by all students. This is certainly the assurance which I have been given by SAFCERT's CEO.
When I raised this issue with Dr Calitz, he informed me that the provisional investigation (SAFCERT's report is not yet finalised) conducted by him had indicated that marks of those learners who attended former Model C schools had been adjusted to a considerably lesser extent than those of learners who attended other schools in all the subjects which had been investigated so far. Dr Calitz gave the assurance that there was no bias in SAFCERT's approach and that the only yardstick which was adopted, was that of a thorough statistical investigation of all marks which had been improperly adjusted.
102.2 Scripts were not requested for minor subjects, but for those subjects which are popular and consequently have a predominance of black pupils. Subjects such as technical drawing, where across the board increase of marks occurred, were not requested for moderation. Again, the advantaging of white students appeared to have been a motive.
I also raised this issue with Dr Calitz and was given the assurance that, particularly in the light of these concerns, all subjects would be investigated and no particular group or subject would be ignored in the moderation process. He stated further that, in fact, no adjustment of marks occurred in the subject technical drawing.
102.3 Mr Talbot had remarked on the 28th of December 1998 that he was amazed that there had been no black pupils in this examination which had received a "0" or zero for history. This issue was also addressed in the meeting of SAFCERT of the 21st of January 1999, ANNEXURE "B". Again, I am given the assurance that this approach was motivated by the statistician's concern, and not by any racial motive.
After proper adjustment, there will be candidates who receive a "0" in the subject.
I have conveyed to Dr Calitz that it is essential that the concern that SAFCERT might be biased must be addressed fully in SAFCERT's report in order to ensure that its objectivity, fairness and equal treatment of every learner in the country is beyond question. I trust that these concerns will be fully addressed and conclusively laid to rest.
103.
The other irregularities set out above will have to be covered by the police investigation.
WHO IS AFFECTED BY THE IRREGULARITIES?
104.
There can be no doubt that the entire South African education and examination system, as well as its standardisation and quality control procedure are directly affected by the irregularities. Defalcation of results on an organised and large scale such as the one under discussion here, has an impact not only upon the province concerned, but upon the entire national system, both nationally and internationally. The potential harm that has been done by this action is immense. Swift and transparent action of the nature taken by Minister Bengu was essential to prevent permanent discreditation of the South African education and examination system. The decisive steps taken by the Honourable Minister met with approval by all representative bodies with whom I consulted and were obviously necessary to re-establish the trust in the system as soon as possible.
105.
Learners and students as well as the institutions of higher learning are affected by the publication of the incorrect results. Apart from these, employers who have appointed learners on the strength of a senior
certificate to which the new employee may not be entitled, will be prejudiced as are those learners who are still attempting to find employment. Every matriculant who wrote the 1998 Mpumalanga senior certificate examination will in fact be adversely affected in some way or another, as being one of the Mpumalanga class of 1998 tainted by the false examination results. Obviously, everybody supporting a learner or student, such as parents, family, friends and others, as well as the schools at which the learners studied, are affected directly or indirectly.
106.
A group which has been irreversibly prejudiced, but which will be very difficult if not impossible to identify, are those learners who intended to enter a technikon or university and would have qualified but for the fact that the available place at the institution was filled by a Mpumalanga student who ostensibly qualified for admission and did not do so in fact. Those learners who were part of the large number of students who had to be turned away from technikons in particular (Pretoria Technikon turned away 14 000 applicants) will never be identified, but they certainly suffered.
THE PERSON OR PERSONS RESPONSIBLE FOR THE IRREGULARITY
107.
It is clear from the investigations conducted to date that at least one senior official of the Mpumalanga Education Department, and possibly others as well as a number of other employees in positions of trust were responsible for the irregularities which have been discovered. Their identity cannot be disclosed at this stage as the police investigation is not completed.
THE CONSEQUENCES OF THE IRREGULARITIES
108.
It is clear that all learners in Mpumalanga have been affected and tailed by the stain that they belong to the class of 1998.
109.
At this stage the exact number of learners who will be affected by the unlawful adjustment of marks is not known. This will be determined by the SAFCERT report. It appears probable, however, that the majority of learners in Mpumalanga will see their marks lowered to a greater or lesser extent, depending on their choice of subjects.
110.
This may have serious consequences for every single one of them, in particular those who gained entrance to higher education institutions on the strength of a result which indicated a university entrance or technikon admission result, or who obtained employment on the strength of a certificate which may now in reality not be awarded at all.
111.
The above average candidates who gained admission to higher education institutions, and whose university entrance qualification will not be affected by a lowering of their marks, should experience no problems in continuing their studies. It may be, however, that such a student may lose a bursary or loan which is only awarded to above average candidates. It is impossible to estimate at this stage how many individuals may be affected in this fashion. I would urge those bodies which grant bursaries and loans to be lenient toward students who may now no longer qualify for assistance which may be essential for their continued studies, and to grant the holder of the by or loan the opportunity to prove himself or herself
112.
The next category of learners who will be adversely affected are those who on their published marks gained a university entrance result which is now no longer the case. Such a candidate would normally not be admitted to a university, but could, under extraordinary circumstances, possibly be admitted under the provisions of paragraph 23 of Government Notice No 1586 of the 28th of November 1997, issued by the Committee of University Principals in regard to the requirements and conditions for senior certificate endorsement and the issuing of certificates of exemption, as amended on the 27th of November 1998. This would mean that a candidate who would not normally comply with all the conditions of a senior certificate examination endorsement might be admitted conditionally, subject to obtaining the outstanding qualifications which would meet the senior certificate exemption conditions. I suggest that all universities who have admitted candidates falling into this category should be urged to follow this course.
113
The third and fourth categories are learners who are enrolled at universities who do not qualify for a senior certificate exemption at ale or who have in fact failed their senior certificate examination. In both instances, admission to a university would normally not be granted, but according to Mr Lötter, the representative of the South African Universities Vice Chancellors' Association, universities can, in terms of paragraph 31 and with the consent of the Joint Matriculation Board, grant an extraordinary exemption to these candidates and allow them to remain at the university and assess them at the end of the first semester or at the end of the first year, provided that the university concerned has a support program enabling the student to supplement the qualification he has not yet obtained. On the strength of such a support program and assessment a student could be allowed to continue his or her studies.
114.
Although this would amount to an extraordinary concession to students who were enrolled on the strength of their incorrect marks, I suggest that the Department of Education urge all universities to adopt this approach toward students in this group.
115.
Obviously, all universities do offer study assistance and bridging courses which may well be required for many of these students; such assistance would be greatly appreciated.
116.
The technikons may find themselves in a somewhat different position. In terms of section 76 of the Higher Education Act, Act 101 of 1997, the Technikons Act, Act 125 of 1993, is repealed in its entirety.
117.
Section 74(6) of the Higher Education Act does provide, however, that
"the joint statutes and joint regulations and rules made in terms of the Technikons Act, 1993 continue to exist until the date/s contemplated in subsection (2) of this section."
118.
Subsection (2) in turn reads as follows:
"In terms of subsection (3) the Committee of University Principals, the Matriculation Board and the Committee of Technikon Principals cease to exist as statutory bodies on a date or dates to be determined by the Minister in the Gazette."
119.
No such date has yet been determined, with a result that the admission requirements prescribed by the Committee of Technikon Principals in terms of section 5(e) of the Technikons Act still apply. Requirements for admission to study at a technikon are consequently determined in the joint statutes. The joint statutes in turn prescribe in paragraph 6(1) thereof, read with section 26(1) and 26(3) of the Technikons Act, that a senior certificate issued in terms of section 9 of the South African Certification Council Act, a national senior certificate or an equivalent qualification must have be obtain by the student to gain entry to a technikon.
120.
No equivalent to paragraph 23 or paragraph 31, which allows universities to enroll students under special exemptions and conditions, exists for technikons.
121
From a strictly legalistic point of view, students who have failed the examination on a re-adjustment of their marks would consequently have to leave a technikon. Mr Nico Stofberg, the representative of the Committee of Technikon Principals, indicated as much during the discussions that I held with the representatives of the Higher Education Institutions.
122.
Technikons would, according to Mr Stofberg, offer to reimburse the fees which such students had paid as a matter of course, and would repay a pro rata portion of the hostel fees.
123.
I suggest that the national Department explore ways and means with the technikons to allow students who were enrolled on the strength of their incorrect marks to remain at the technikon, should they wish to do so, at least for the first semester or the first year, and to give them an opportunity during this period to obtain a senior certificate, possibly by arranging for a special supplementary examination for these students in the winter holidays. Alternatively, a final decision of their future at a technikon could possibly be delayed until the end of this year, or early in 2000, once such students have had an opportunity to sit for the senior certificate examination again.
124.
It is clear that many people have suffered not only emotional stress, but potentially serious financial consequences. This would be particularly the case if students had in fact to be turned away from universities or technikons as a result of the correction of their marks.
125.
The potential litigation that may arise from the irregularities cannot be foreseen at this stage. It is quite possible that parents, unsuccessful learners and students who have to leave an institution might decide to sue the authorities and in particular the Mpumalanga Education Department and possibly SAFCERT or the individuals involved, for damages. Obviously, every authority which is sued, could join the perpetrators of the irregularities as co-defendants.
126.
The Mpumalanga Education Department might be well advised to obtain the services of an arbitration institution, such as the Arbitration Foundation of South Africa or of the Arbitrators' Association, to assist in the settlement of potential claims which may be instituted.
127.
As another consequence of the irregularities, the national Department of Education decided to assume direct control of the supplementary examinations presently conducted in Mpumalanga This power was exercised in terms of the provisions of the National Education Policy Act, Act 27 of 1996 and the Further Education and Trading Act, Act 98 of 1998.
THE STEPS TO BE TAKEN TO ENSURE THE INTEGRITY OF THE SYSTEM
128.
Once the irregularities were discovered, urgent steps were required to protect the integrity of the system. The transparent and high profile steps which the Honourable Minister of Education and the national Department took to support the SAFCERT enquiry and the police investigation and to arrange for my appointment have done much, I believe, to protect the integrity of the system. This has been acknowledged by all interested parties.
129.
Further steps need however to be taken to ensure adequate protection of the system. The first of these must be that the Department of Education in Mpumalanga must institute departmental and disciplinary steps against those persons responsible for the irregularities, and in particular the senior official or officials and the moderators and examiners who have already been identified as participants in the unlawful activities.
The police investigation must be concluded as soon as possible and, should a prima facie case of fraud or forgery and uttering be established, prosecutions of the perpetrators of the irregularities should follow. In this connection, the national Department should publicly request the Director of Public Prosecutions to give priority to these matters and should also offer to present evidence in regard to an appropriate sentence should a conviction follow. Prima facie I am of the view that in case of conviction a considerable term of imprisonment would be the appropriate punishment to be imposed.
131.
In addition, statutory and regulatory steps will have to be taken to prevent a repetition of the irregularities. These are discussed below.
HOW ARE THE CANDIDATES' RIGHTS TO BE PROTECTED?
132.
It is clear that the learners who sat the Mpumalanga senior certificate examination are entirely innocent of the irregularities discussed in this report.
133.
In order to ensure that their rights are properly protected, it must first be understood what these rights are.
134.
The candidates have, in the first instance, an obvious right to be properly educated and to be given them opportunity of writing an examination that has been fairly set, covers the curriculum that has been taught and is of an appropriate standard. Furthermore, a candidate has the right to be properly tested, to have the examination scripts properly marked and assessed and to be given a fair mark correctly reflecting the level of his or her performance. Thereafter, has the right, if properly qualified, to be considered for admission to an institution of further or higher education.
135.
A learner does not have a clear right to be admitted to an institution of higher education, compare
Motala & Another v University of Natal 1995(3) BCLR 374 (D)
but clearly has a right to be fairly considered according to appropriate selection criteria for admission to such an institution.
136.
Obviously, a learner has all the other rights enshrined in the Constitution's Bill of Rights and in the South African Schools Act, Act 84 of 1996.
137.
This means that the candidates are entitled, inter alia, to fair administrative action, equal treatment and a protection of their right to learn.
138
Every learner and his family have the right not to be prejudiced by a delict and not to be victims of dishonest, unfair and discriminatory administrative actions.
139.
It is questionable whether, from a strictly legalistic point of view, a student who has been admitted to an institution of higher education on the strength of a senior certificate which, through no fault of his own, reflects incorrect marks, is entitled to remain at an institution which would have refused him or her admission if the senior certificate had reflected the correct marks.
140.
There can be no doubt, however, that a candidate who was brought under the false impression that his or her marks were better than they are, has a right to be treated fairly now that the true facts have come to light.
141.
I have already adverted above to the probable consequences that may result from actions which institutions of
higher education may feel compelled to take once the candidate's correct marks are known. If the strict letter of the law is applied, some institutions may feel constrained to exclude those students who have in fact failed
142.
I hope that it will be possible to make special arrangements for these students who are the innocent victims of the unlawful action of others, along the lines suggested above.
143.
The course I suggest would be in accordance with the unanimous recommendation I have received from education authorities, student representative bodies, parent representative organisations, governing bodies' representative organisations and others, including SAFCERT and the Mpumalanga Education Department. It is clear that, to a certain extent, a student who actually failed the examination and is now given an opportunity to prove herself or himself on the strength of his or her performance during the first semester or first year at a higher education institution will ironically be given an extraordinary advantage should my proposals be accepted. This is preferable, however, to the alternative of summarily terminating the student's enrolment. I fully appreciate that the appeal to allow the students an extraordinary chance to continue a further or tertiary education, involves financial commitments on the part of the institutions concerned, but I trust that the additional resources which are required to accommodate these students will have a smaller impact upon the institutions than summary dismissal would have upon the students.
144
I have already referred to those candidates, who, had it not been for the admission of ostensibly properly qualified students from Mpumalanga, might have gained entrance to an institution of higher education or further education, but were refused because of the fact that the institution had no further capacity to admit them. The rights of these potential students have been negatively affected, albeit tangentially. It would be impossible, however, to identify the individuals concerned, although some student may still sue either the Mpumalanga Education Department, SAFCERT, the individuals involved or an institution of higher education for damages or other relief as a result of the effect which the irregularities have had on him or her.
STEPS TO BE TAKEN TO AVOID A REPETITION
145.
The irregularities which were perpetrated could be committed because the system was simply not designed to prevent unlawful action on the part of persons who had been appointed to protect and guard and properly apply the education and examinable system.
146.
When doubts were raised at the end of December 1998 about the Mpumalanga results, the authorities, and in particular the national Department and SAFCERT as well as the Mpumalanga Education Department, were faced with a classical "Catch 22" situation. Had it been decided to withhold publication of the marks beyond the deadline of the 7th of January 1999 in order to finalise the moderation process, the result public outcry and negative effect upon the system may have been as severe, if not worse, than that which the later discovery of the irregularities had after publication of the results. Such a situation must be avoided in future.
147.
A repetition of the irregularities may at first blush seem to be unlikely given the high profile which the national Department's reaction has assumed.
148.
Procedures must however decidedly be put in place to ensure that a similar irregularity cannot be perpetrated upon the system in future.
149.
In the fiat instance, I would recommend that regulations should be promulgated determining that, in order to eliminate human error and tampering, a duplication of the counting and capturing of examination marks should be introduced as obligatory in all provinces. Two independent teams should each add and capture the marks and thereby ensure that there is a built-in control of the result.
150.
In addition, SAFCERT and the examining authority should not only have the power, but also the duty to prevent the publication of results which at first blush appear to be suspect.
151
The SAFCERT Act and regulations should be amended to determine that the examining authority and SAFCERT must, after with one another in the standardisation process, independently certify that they are satisfied that the results are genuine before publication thereof may take place.
152.
SAFCERT should also re-arrange its schedules and programs in order to be able to execute its monitoring function, if necessary, prior to the publication of the senior certificate examination results.
153.
Finally, I am aware of the fact that the present investigation and this report will have a severe effect upon the Mpumalanga Education Department, which has already suffered a great deal because of the adverse publicity which it and its MEC, Mr Mabuza, have received.
154.
I believe that the Mpumalanga Education Department's present capacity, which will be subjected to further strain as a result of this report and the potential further steps that may follow, will require support of the nature which the national Department is rendering at the moment in respect of the supplementary examinations. I recommend that such support be given until such time as matters have returned to normal and the Mpumalanga Education Department is in a position to resume its ordinary functions.
155.
SAFCERT and the Mpumalanga Education Department should convene a joint meeting as soon as possible to clear the air and to determine procedures which will ensure co-operation and create mutual trust in the interest of the education and examination system as a whole.
CONCLUSION
156.
I thank the Honourable Minister for the privilege bestowed upon me to be able to play a part in this investigation. I am certain that the speedy reaction of the national Department and the public manner in which the Honourable Minister took decisive steps to protect the system have done a great deal to prevent further harm.
157.
I would like to thank the officials of the national Department and of the Mpumalanga Education Department and in particular my secretary Mrs Elize Paton and Ms M Locke of the Directorate Legal Services of the national Department for their support, assistance and encouragement - as well as the many hours of overtime which were put in to ensure the timeous finalisation of this report.
EBERHARD BERTELSMANN SC
ACTING JUDGE OF THE HIGH COURT
JUDGES' CHAMBERS
PRETORIA
3 APRIL 1999