Basic Education launches court bid over publication of matric results in newspapers

The Department of Basic Education (DBE) has lodged an application to set aside the enforcement notice issued by the Information Regulator (IR) regarding the publication of matric results in newspapers.

Last month, the IR issued an enforcement notice to the DBE over what it described as noncompliance with the Protection of Personal Information Act (POPI Act). 

The enforcement notice is meant to prevent the annual publication of the matric results in the newspapers.

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According to spokesperson Elijah Mhlanga, the department filed its papers at the North Gauteng High Court in Pretoria on Friday.

“The appeal means that the enforcement notice has been suspended. The department will proceed and release results to media houses who will publish them in terms of the established practice in which only exam numbers are used,” he said.

In its papers, the department argues that the publication of the matric examination results in its current format (only the examination number and the results) in the newspapers is not information that relates to an identifiable learner. 

DBE’s arguments

“Firstly, an enforcement notice under section 95(1) of the POPI Act can only be issued and served in respect of a past or present interference with the protection of the personal information of a data subject and is therefore, by legislative design, reactive in nature so that the proactive enforcement notice served by the Information Regulator on the Department of Basic Education, with regard to the future publication of the matric examination results, is null and void,” writes the department in its arguments.

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“Secondly, and in the alternative, the Information Regulator is bound by a court order which already settled the lawfulness of the release and publication of the matric examination results in the present format (consisting of examination numbers and corresponding results only) in local newspapers.

“Thirdly and in the further alternative, the release and publication of the matric examination results in the present format (consisting of examination numbers and corresponding results only) in local newspapers is not the publication of information which relates to an identifiable person and therefore the Department of Basic Education is not in contravention of section 11 of the POPI Act. 

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“Fourthly and in the further alternative, the release by the Department of Basic Education for publication of the matric examination results in the present format (consisting of examination numbers and corresponding results only) in local newspapers is in any event compliant with the processing limitations contained in either section 11(1)(b), (c), (d), (e) or (f) of the POPI Act.”

DBE: ‘Where is the violation?’

The department argues that the IR should demonstrate how the publication of matric results in their current form violates the POPI Act.

“The decision to serve the department with the enforcement notice is not in accordance with the law and/or involves an exercise of discretion by the Information Regulator that ought to have been exercised differently.”

AfriForum on publication of matric results

The department is not the only institution challenging the IR’s enforcement notice. Last month, AfriForum announced it had instructed its legal team to challenge the IR’s notice.

In January 2022, the organisation and other parties won a case against the department, where it was ordered to publish the matric results.

According to Alana Bailey, AfriForum’s Head of Cultural Affairs, it is in the public’s interest that this information is shared on public platforms. 

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“To label it as a violation of individuals’ right to privacy does not make sense, as only examination numbers appear in the media. The court has previously ruled in favor of AfriForum and the other parties that this does not infringe on anyone’s right to privacy,” she said.

“AfriForum is determined to once again do everything in its power to ensure that this year’s matriculants will also be able to get their results on media platforms as has been the custom in the past.”