Information Regulator insists publishing 2024 matric results violates Popia, urgency questioned

The Department of Basic Education (DBE) and the Information Regulator (IR) faced off in the North Gauteng High Court in Pretoria on Tuesday, debating whether the 2024 matric results should be published in newspapers.

The IR filed an urgent application to block the release of the National Senior Certificate (NSC) examination results in this manner, citing concerns about the violation of students’ privacy under the Protection of Personal Information Act (Popia).

However, the DBE has opposed the application, with AfriForum joining the case as an interested party.

Despite the IR’s enforcement notice issued in November last year and a potential R5 million fine, the DBE plans to announce the results next week.

Urgency over 2024 matric results questioned

Judge Ronèl Tolmay presided over the matter, questioning the urgency of the application.

She criticised the IR for late submissions, stating that the explanation for the late filing was “totally unacceptable”.

“The consequence is that last night your heads of arguments was filed, but I refused to let them be uploaded until I had the affidavit [which] I received this morning just before I came to court, so I haven’t read your heads of arguments,” the judge said.

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Tolmay also noted the case’s similarities to a prior judgement ruling in favour of AfriForum in January 2022, where Judge Anthony Millar ordered that results could only be published using examination numbers, excluding names.

“So we are limited to why this year’s results should not be published as it was done in the past,” she added.

IR’s argument on publication of 2024 matric results

The IR’s legal team emphasised that Millar’s ruling did not address whether publishing results violated Popia.

“If the order had been granted, we would have not been here because there would be a general declaratory order that says it is lawful to publish matric results in newspapers,” Advocate Kennedy Tsatsawane said.

Tsatsawane explained that the enforcement notice issued in November stemmed from a compliance assessment conducted after the release of the 2023 matric results.

“[The assessment] gave birth to the enforcement notice and the orders we seek today,” the lawyer stated, adding that the DBE had been given an opportunity to respond to the draft assessment before the notice was finalised.

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“At the end of the day, the regulator had to take a decision having considered the comments of the DBE. The regulator then issued an enforcement notice, which is now in dispute.”

The IR contended that the DBE breached Section 11(a) of Popia by releasing the 2023 results without the students’ or guardians’ consent.

The regulator proposed alternative methods of sharing results, such as secure SMS platforms.

“We submit that the regulator was correct in acting in the manner that it did, and we submit that a proper case for urgency has been made,” Tsatsawane concluded.

DBE’s response

Advocate Marius Oosthuizen, representing the DBE, argued that the regulator had ample time since the 2022 judgement to address its concerns.

“They had all the time in the world since 2022 to do something about this court order [and] they elected not to do so,” he said.

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Oosthuizen insisted that Millar’s ruling had not been overturned and that the continued publication of results could, therefore, be deemed lawful.

“Yes, there is no expressed declarator, but the order itself cannot be given unless the judge was satisfied that the conduct is lawful,” he said.

After hearing arguments, Judge Tolmay reserved her judgement and will deliver a ruling on Wednesday.

EFF supports interdict

Meanwhile, the Economic Freedom Fighters (EFF) have sided with the IR in the court challenge, expressing concerns over the publication of examination results.

According to the EFF, the release of these results has inflicted “irreparable harm on young people whose performance in the examinations was poor or less than satisfactory.”

The party criticised the justification provided by the DBE and AfriForum, calling their claim that releasing the results was in the public interest “shallow and misleading.”

“The examination results of individual learners are personal and serve no purpose as public information,” the EFF’s statement reads.

“This practice has for decades caused undue harm on the youth, and in extreme cases has led to the rise in self-harm by young people who could not bear the pressures of either performing poorly or failing matric,” the party concluded.

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