The Department of Basic Education (DBE) has secured a temporary reprieve from the R5-million fine imposed by the Information Regulator (IR) over the publication of the National Senior Certificate (NSC) results in newspapers.
Anyone who wasn’t off the grid over the summer holidays would have been aware of the clash between the DBE and the Regulator over the publication of the 2024 matric results in newspapers and the interpretation of the Protection of Personal Information Act (POPIA).
The dispute began on 6 November 2024 when the IR issued an Enforcement Notice, accusing the DBE of violating POPIA by publishing the matric results in newspapers without learner or guardian consent. The IR ordered the DBE to stop and provide a written undertaking within 31 days.
Defying the order, the DBE announced on 27 November that it would continue publishing the results, citing a 2022 court ruling in favour of transparency.
Read: DBE pushes ahead with matric results publication amid privacy debate
In response, the IR issued an Infringement Notice, slapping the DBE with a R5m fine and filing an urgent application with the High Court in Pretoria to halt publication.
However, on 8 January, Judge Ronel Tolmay struck the IR’s urgent application off the roll, ruling that it failed to prove urgency. With the legal roadblock cleared, the DBE proceeded to release the 2024 matric results on 14 January.
Read: DBE to publish matric results amid R5 million fine for privacy breach
Shortly after the ruling, IR chairperson Advocate Pansy Tlakula emphasised that the DBE remained in violation of the Regulator’s orders despite the court’s decision. She clarified that the Enforcement Notice remains binding unless overturned on appeal, although filing an appeal temporarily suspends it. This means the R5m fine remained payable.
In late January, BusinessDay reported that the DBE filed a review application with the High Court, seeking to have the notice barring the publication of the matric results declared unconstitutional and the Enforcement Notice set aside.
Nomzamo Zondi, senior manager: communication and media at the Regulator, told Moonstone that the DBE has not yet paid the R5m fine.
Zondi confirmed that the Regulator received formal notification of the DBE’s review application.
She said it was agreed to keep the Enforcement Notice and Infringement Notice in abeyance pending the outcome of the legal proceedings.
“The parties will jointly request the Deputy Judge President of the Gauteng Division of the High Court to allocate a date for hearing of the matter,” she said.
Matter of contention
Judge Tolmay’s ruling noted that publishing the matric results in the media is not a new practice – it has been done for generations. However, with the full implementation of POPIA on 1 July 2020, the law changed how personal information is protected, raising legal questions about the continued legality of publishing the results.
In January 2022, the Minister of Basic Education and the Director-General of the DBE sought a court ruling on the matter. The parties, which included the Regulator, reached a settlement, and a court order was issued, allowing the results to continue being published – but without learners’ names and surnames. Instead, unique exam numbers were used, a method followed for the 2021, 2022, 2023, and 2024 results.
In a draft report, the Regulator raised concerns about the DBE’s failure to obtain consent from learners or guardians before publishing the 2023 matric results. The DBE responded to the report in January 2024. However, despite being aware of the DBE’s stance, the Regulator took 10 months to issue the enforcement notice in November 2024.
In her judgment, Judge Tolmay emphasised that she deliberately refrained from addressing the merits of the Regulator’s urgent application. She pointed out that issues such as POPIA, the roles of the Regulator and the DBE in carrying out their duties, and the balance between protecting personal information, public interest, and freedom of the press are complex matters that should be thoroughly explored in a full hearing.
“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,” she said.
Commenting on Judge Tolmay’s ruling at the time, Tlakula noted that if the department appeals, as it has now done, the court will need to address whether the Regulator’s interpretation of POPIA or the DBE’s interpretation is correct.
“It’s important for the courts to begin to establish jurisprudence in this country on POPIA, because POPIA is a new piece of legislation and has not been tested in court. So, we welcome, and I’m sure the minister also welcomes, the fact that it will be good for all of us as South Africans if the court engages with these issues, assists us in the interpretation of POPIA, so that we come to a conclusion once and for all,” Tlakula said.
Clock is ticking
With the first hearing date yet to be set, it’s anyone’s guess how long it will take before the court provides final clarity on this matter. Meanwhile, the new school year is already a month in, with the 2025 matriculants gearing up for their final exams.
The Enforcement Notice issued in November also outlined conditions for the publication of the 2025 matric results. The DBE was instructed to obtain explicit consent from learners aged 18 and older, or from the parents or guardians of younger learners, before publishing any results in newspapers.
In addition, the DBE was given 90 days to develop a system for managing and verifying this consent, subject to the IR’s approval to ensure compliance with POPIA. The notice further stated that if the DBE continues publishing results linked to exam numbers, it must ensure that learners cannot be identified by their peers. If a new system is introduced, it must meet POPIA standards, with evidence provided to the IR.
After Judge Tolmay’s ruling, Minister of Basic Education Siviwe Gwarube confirmed that the DBE had committed to ensuring that, for 2025, learners will have the option to decide whether their unique exam numbers are released to the press.
Moonstone reached out to the DBE, asking what steps the department plans on taking this year to ensure it follows through on this commitment. No feedback had been received by the time of publication.
Time will tell whether the Regulator and the DBE can get everything in place this year, or whether we’ll see another showdown when the 2025 matric results are published.
