The Information Regulator has suffered a major blow in its bid to interdict the Department of Basic Education (DBE) from publishing matric results in the media.
This, after Judge Ronel Tolmay this morning threw out the urgent court application by the Regulator to stop the department from going ahead with publishing the 2024 matric results in the media, arguing that it was in contravention of the Protection of Personal Information Act (POPIA).
The 2024 National Senior Certificate examinations results will be released next week on Tuesday 14 January.
Headed by Advocate Pansy Tlakula, South Africa’s data privacy enforcer in December issued the DBE with an infringement notice, in which it ordered the department to pay an administrative fine of R5 million following its failure to comply with the enforcement notice issued by the regulator 18 November 2024.
The DBE was issued with the enforcement notice for contravention of various sections of POPIA after it failed to obtain consent for the publication of matric results from learners or parents/guardians of learners that sat for the 2023 National Senior Certificate examinations, according to the regulator.
However, the education department lodged an application to set aside the enforcement notice issued by the watchdog regarding the publication of matric results in newspapers.
The DBE filed its appeal application in terms of section 97 of the POPI Act on the relevant online high court system on 13 December.
Final interdictory relief
In her ruling, Judge Tolmay says the applicant brought an urgent application seeking final interdictory relief on an urgent basis.
She notes that the relief seeks to interdict the DBE from publishing the 2024 matric results other than the schools or dedicated SMS platform, and also to refrain from publishing in terms of contravention of the enforcement notice issued in November.
The Information Regulator wanted the department to comply with the enforcement notice.
“It is common cause that for generations the results have been published in the media. The advent of the Protection of Personal Information Act brought about a change in the approach regarding the protection of personal information,” says Judge Tolmay.
“This resulted in an application launched during January 2022 by the first and second respondents seeking certain relief as they were concerned about the lawfulness of the continued publication of the results.
“The applicant was cited in that application…and the parties ultimately settled the matter and an order was made by agreement between the parties.”
She points out that the Information Regulator participated and contributed to the order that was granted.
That order states that the matric results should be published as was done in the past but should not reflect the names and surnames of the learners as was done previously.
The matric results were published in this manner in relationship to the matric results of 2021, 2022, 2023 and 2024, says the judge.
She states that the regulator took 10 months to issue the enforcement notice. The department decided to appeal against the enforcement order to the High Court. In terms of section 97 of the POPI Act, this should be done within 30 days of receiving the notice.
The appeal was filed in time but was served on the applicant seven days late.
“The urgency of this matter, according to the first and second respondents, was caused by the Information Regulator, which took 10 months to finalise its assessment and issuing an enforcement notice.”
The department also questioned the timing of the issuing of the enforcement notice (November 2024), which it said was the busiest time in as far as examinations are concerned, and just before the commencement of the traditional holiday season.
It added that the Information Regulator’s urgency in the matter was self-created.
“The balancing of the Protection of Personal Information Act with public interest and the freedom of the press are important and complex issues that should be properly canvassed and ventilated,” Judge Tolmay says.
“It will not be in anybody’s interest to determine these issues within the constraints of an urgent court unless there is good reason to do so. The implementation and application of the POPI Act in relation to the publication of matric results has been contentious at least from the beginning of 2022.
“Litigants, including State litigants, will be well-advised to act expeditiously and not wait until the last moment to get certainty about contentious and complex legal issues. The urgent court should not be burdened with complex disputes that could have easily been resolved in normal courts if the necessary steps were taken timeously.”
Learners’ rights
“There is nothing before me to indicate any prejudice to the learners.” She also added that there is no evidence of any complaints from the learners.
She urged the parties to determine what would be in the best interests of the learners.
“The present manner of publication of the results has been followed for at least three consecutive years. Why should this year be treated differently?
“I, therefore, conclude that the matter is not urgent and should be struck from the roll.” She then ordered the Regulator to pay the costs.
Speaking to ITWeb before the ruling, Mukelani Dimba, head of education and communication at the Information Regulator, said the watchdog was satisfied that the court granted an opportunity for its application to be heard and for arguments by all parties to be presented.
“The publication of the matric results must be compliant with the provisions of POPIA to ensure that the personal information of the matriculants is duly protected,” said Dimba.
“The publication on matric results should not lead to the violation that the data subjects, in this case the matriculants, have in law. We did an assessment and found the Department of Basic Education had not put in place the mechanisms necessary for the lawful processing of personal information of the data subjects.”
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