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The Gauteng High Court in Pretoria has thrown out the Information Regulator's (IR's) urgent application to interdict the publication of the 2024 matric results in the country's newspapers. (Ashraf Hendricks/GroundUp)
- The Information Regulator's (IR's) urgent application to interdict the publication of the 2024 matric results in the country's newspapers, has been struck from the roll.
- The IR approached the Gauteng High Court in Pretoria in December, after the Department of Basic Education failed to provide an undertaking that it would not publish the results in this manner in line with an enforcement notice that was issued the month before.
- After hearing arguments on urgency on Tuesday, the court on Wednesday ruled the matter was not urgent.
The Gauteng High Court in Pretoria has thrown out the Information Regulator's (IR's) urgent application to interdict the publication of the 2024 matric results in the country's newspapers.
The IR's application followed an enforcement notice it served on the Department of Basic Education (DBE) in November, in which the regulator found that publishing the results in this manner was in breach "of the conditions for the lawful processing of personal information" under the Protection of Personal Information (POPI) Act.
The IR ordered the DBE to, among other things, provide an undertaking that it would not publish the 2024 results in newspapers within 31 days, and turned to the courts after it failed to do so.
Judge Ronel Tolmay heard arguments on urgency on Tuesday. On Wednesday, she found the matter was not urgent and struck it from the roll with costs.
The enforcement notice came on the back of an "own initiative" assessment by the IR, which followed a 2022 High Court order on the same issue. That year, the department decided it would no longer publish the results in the media because of concerns around the POPI Act.
AfriForum, Maroela Media and then matric candidate Anle Spies went to court. In the end, the matter was settled, with the parties coming to an agreement - which was also made an order of the court – that the results would be published, but without learners' names included.
The department's director-general, Hubert Mweli, had further argued that the department had responded to the IR's draft report back in January already - accusing the regulator of having "waited in silence for more than 10 months before it bothered to issue its enforcement notice".
No persuasive reasons
"It must be stressed that no persuasive reasons were provided for the delay in bringing the application," Tolmay said on Wednesday.
The IR had argued that the issuance of the enforcement order and the department's failure to comply had triggered the urgency in the matter, but Tolmay further said: "The implementation and application of the POPI Act in respect of the matric results have been contentious from at least 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 easily have been resolved in the normal course if the necessary steps were taken timeously. The assessment and compliance notice - in the circumstances of this case - can not be a trigger for urgency."
"The urgency - if any - is self-created and should not be countenanced by this court." she added.
Tolmay also said the interests of the affected learners should have taken centre stage in these proceedings.
"They did not. There is nothing before me indicating any prejudice to learners. The [regulator] should at least in the assessment or papers have dealt with that. It is also important to note no evidence of any complaints by learners was placed before me. The whole dispute at this point centres on the contradicting views of the parties," she said - adding that those involved would be "well advised to determine what will be in the best interests of the learners".
She added: "After all it is their rights we are dealing with,"
Tolmay also highlighted that the matric results had been published in this way for the past three years.
"Why should this year be treated differently?" she asked.
Merits
While Tolmay did not go into the merits of the case in her ruling, the department filed an appeal against the enforcement notice - as well as against a R5 million fine it was slapped with for non-compliance - last month and its position was that the IR's orders had been suspended for the time being, as a result.
The IR, however, took the stance that because the appeal was filed out of time, it was not properly before the court and this meant its orders stood.
And in the papers, IR chair advocate Pansy Tlakula said their case was "intended to protect the personal information of the 2024 matric learners," whose results were otherwise "going to be published in the media without their consent and therefore in contravention of their right to privacy by disseminating their personal information".
Against this backdrop, the IR wanted the department interdicted from publishing the results or causing them to be published in any way "other than by simply issuing the matriculants' statement of results to the relevant learners at the schools which they attended or through the DBE's dedicated SMS's platform".
Anonymised
Mweli, however, had maintained that the matric exam results were made available to the media "in an anonymised format consisting only of the exam number and the corresponding results of each candidate" and that "except for the learner and the persons to whom the learner has disclosed his or her exam number, no reader of the local newspapers can reasonably be expected to be able to identify a particular learner from that information".
He had also laid out how "since time immemorial the writing of the matric examinations has been a momentous occasion in the life of the vast majority of learners in South Africa" - saying "part of this experience has always been the traditional release and publication of the matric examination results in the local newspapers and in other public media".
