On the 8th of January 2025 in the case of Information Regulator versus the Department of Basic Education (DBE) and others, there seems to have been a missed and important opportunity to develop much needed jurisprudence on the Protection of Personal Information, Act of 2013 (POPIA).
An individual matriculant by the name of Ms Spies applied to the High Court in order for the 2021 matric results to be published via print media and electronic media, omitting the name and surname, as it had been done in the past.
The Information Regulator (IR), at the time, did not oppose the relief sought and “abided by the court order” and the order was granted. It must be noted that the court, at the time, did not deal with the merits of the application nor did it give a detailed judgement as to how it came to the said conclusion.
The once-off court judgement did not create any precedent, and it related to an individual and not the entire country. The POPIA only became enforceable in June 2021 after the one year grace period hence the IR did not have much standing to approach the court or make any findings about the DBE’s method of publication of matric results in previous years.
The court seemingly did not take into account that in terms of the POPIA, the IR is a body of five individuals in terms of Section 41 of the POPIA. The fact that the court repeatedly referred to the applicant as “she” in other words, chairperson Adv Pansy Tlakula and not “it” or “the regulator” more than three times appears as an indication of this, which is unfortunate.
The regulator was within its right to carry out the “assessment” in terms of Section 89 of the POPIA, and the fact that the outcome of the investigation was in November 2024 had nothing to do with the courts being busy at the time.
Misplaced argument
It is my respectful view that the argument that the IR created the urgency by itself is misplaced and the honourable court erred in that regard.
Seemingly, the court misconstrued and/or misunderstood the IR’s grounds for urgency. The IR sought a final interdict interdicting the DBE as a result of it not respecting the enforcement notice it had been issued with.
The honourable court erred and misconstrued the urgency sought by the IR by mentioning that it had 10 months to approach the court for relief. The urgency came about by virtue of the DBE failing to serve and file its appeal on time and also after filing same and no condonation was filed with it.
I agree that the IR will eventually succeed as there are flaws of a fundamental nature to the argument brought forward by the DBE. The POPIA states that information which is personal relates to an identifiable person.
If there is a reasonable way in which a student can be connected to an examination number that allows for them to be identified, then the examination number is considered personal information under POPIA.
Respectfully, the remarks by the court that there was an appeal before the court with no need for a condonation application cannot be sustained in law. In the absence of a court order setting the IR’s “enforcement notice” aside and or a properly as well as timeously served and filed appeal (with condonation application), the IR’s decision stands, which would be in accordance with the principles set out in the Oudekraal matter.
The court appeared to have a good grasp of the facts and the issues at hand and also had about a week to consider the merits. Unfortunately, the court opted to strike the matter from the roll.
In my view, this was a golden opportunity to give more in-depth consideration to the unfortunate conduct of the DBE and its dilatoriness. This is the reason why the IR had opted and, indeed, was compelled to approach the urgent court.
Sometimes the urgent court must, as I believe it should have in this instance, deal with serious and complex legal matters that have constitutional implications (privacy, freedom of the press and the greater good).
The court wisely raised the issue of prejudice, highlighting that the DBE had not received any complaints from learners regarding the publication of matric results. I have not seen either party’s court papers and arguments but I believe that with the levels of anxiety, mental health issues and suicides that occur around the time the results are released, this urgent application was an instance that merited the court delving into the merits of the case.
In my view, the court failed to consider and recognise these important considerations as well as the fact that this was an important opportunity to develop much-needed jurisprudence on the Protection of Personal Information Act.
Serious legal matter
The urgent court could have and should have taken the approach in this serious and important legal matter with the same legal robustness as was displayed in the matter of Gregory Els and Others vs eMedia Investments.
The urgent court had to deal with and distil Section 7 of POPIA, in particular the journalistic exclusion to the POPIA wherein the court had to balance public interest, the right to privacy or the right to freedom of expression.
Furthermore, some of the best democracies in the world such as India, Australia and Singapore have followed approaches similar to those ordered by the IR and have adopted privacy-protecting approaches.
The adoption of these approaches by these countries points to the fact that what the IR has suggested is not impossible to do and can be done in alignment with laws governing this subject.
I, personally, feel that the IR should appeal the ruling in its entirety as the ruling of court did not fully consider considering the issues involved before the court and the fact that legal finality needed to be made on the issue of publishing of matric results and the implications of POPIA.
The court has sent out a misleading message that “enforcement notices” of a statutory body tasked with protecting the constitutional right to privacy can be ignored and that time frames to appeal them can be flouted without consequence.
I do not encourage litigation between State departments however, in these types of instances with these kinds of matter, the court should be approached and the court must adjudicate and bring finality to such disputes in the public space.
Note: Former member of the Information Regulator, Prof Sizwe Snail ka Mtuze writes in his personal capacity and not on behalf of any institution and or organisation he may be affiliated with or assisting.
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