The Department of Basic Education’s (DBE) decision to publish the 2024 matric results in newspapers on Tuesday 14 February, may come with a hefty price tag – a R5 million administrative fine issued by the Information Regulator (IR).
On 8 January, the Pretoria High Court struck the IR’s urgent application to interdict the publication of the results in newspapers off the roll. Judge Ronel Tolmay (pictured) ruled that the IR failed to substantiate the urgency of its request.
Following the verdict, Minister of Basic Education Siviwe Gwarube told SABC News that the DBE intends to proceed with releasing the 2024 matric results on 14 February.
Garube said the department welcomed the legal clarity that the court’s decision brings.
“But also we welcome the fact that we now are aware what the conversations with the Information Regulator have been… We’re going to be able to have at least a year to be able to fix what the Information Regulator has raised with us.”
The dispute stems from an Enforcement Notice issued to the DBE by the IR on 6 November 2024. The IR found the DBE had violated sections of the Protection of Personal Information Act (POPIA) by failing to obtain consent from learners or their guardians before publishing the 2024 National Senior Certificate (NSC) results in newspapers.
The Enforcement Notice instructed the DBE to stop publishing matric results in newspapers and instead use methods compliant with POPIA. It also required the department to provide a written undertaking within 31 days that it would not publish the 2024 matric results in newspapers.
Despite this, the DBE announced during a media briefing on 27 November that it would continue publishing the results in newspapers. Chief Director for National Assessment and Public Examinations Rufus Poliah defended the decision, citing three key reasons:
- Access for Learners in Remote Areas: Publishing results in newspapers ensures that learners far from home or unable to access their schools can still view their results.
- Anonymised Format: The results are published using unique exam numbers, ensuring confidentiality, as only the candidate knows their number.
- Legal Precedent: Poliah referenced a 2022 court ruling that required the DBE to publish matric results after AfriForum, Maroela Media, and a matriculant challenged a proposed ban.
Read: DBE pushes ahead with matric results publication amid privacy debate
In response, the Regulator issued an Infringement Notice imposing a R5 million administrative fine on the DBE for non-compliance with POPIA. The IR also filed an urgent application with the Pretoria High Court to interdict the publication of the 2024 matric results.
In a media statement, the Regulator noted that it was disappointed that Judge Tolmay’s decision yesterday was not in its favour.
“The primary implication of the High Court’s decision is that the DBE is likely to proceed with their intention to publish the 2024 matric results in the newspapers as they had indicated recently,” the statement read.
“If the DBE is to proceed with the publication of the results in the newspapers, they will still be guilty of non-compliance with the Regulator’s orders. This is because the Regulator’s orders are not suspended by the High Court’s decision today [8 January], nor by any appeal. No appeal is currently before the court.”
Speaking to SABC News, IR chairperson Advocate Pansy Tlakula emphasised that the IR’s enforcement notice – and the R5 million fine – remain binding despite the court’s ruling.
“The enforcement notice of the Information Regulator is binding unless set aside on appeal. However, the lodging of an appeal suspends the enforcement notice,” Tlakula explained.
During the court hearing on Tuesday 7 January, it was revealed that the DBE had initiated an appeal but failed to complete the process. While the DBE lodged appeal papers with the court, it did not serve these documents to the IR as required under court rules. In its court submissions, the DBE acknowledged its failure to serve the IR on time and stated it would need to apply for condonation for the late filing.
Until the DBE submits its application for condonation, the court hears the matter, and a decision is made, the IR’s orders remain legally binding.
“As things stand, there is no appeal that the department has lost. This means our enforcement notice remains binding on the Department of Basic Education until it is suspended by the lodging of a proper appeal or set aside by the court after hearing the appeal,” Tlakula clarified.
Gwarube explained that the penalty and the interdict are two separate matters. She said that the DBE would address the penalty, acknowledging that if the delay in the process was caused by the sheriff on their side, the department would need to comply with the penalty.
She added that the DBE would engage with the Regulator to discuss the matter further, noting, “There was an issue around the public holidays during the December break.”
“But I want to assure South Africans that, number one, we will be issuing the results in the national newspapers on Tuesday at 6am but also to assure our learners and our parents and communities alike that no names or ID numbers will be published, and that the practice that has been followed thus far of issuing a unique exam number is what will be followed.”
Privacy rights
The Regulator argues that the unique exam numbers used are sequential, making them not truly anonymous.
“Students sit sequentially in the exam, and the results are published, especially in the newspaper. If you are number one, you sit in front; I’m number two, I sit behind you. When the results are published, you’ll be number one, I’ll be number two, and I’ll know your results, and you’ll know mine. So it’s not anonymised,” said Tlakula.
She noted that the Regulator’s order is often misunderstood. “The narrative out there is that the Regulator says the department cannot publish matric results in the newspapers. That’s not our order. We say you can publish provided you obtain parental consent, because even if you publish by using an examination number, an examination number constitutes personal information, and because it is personal information, it has to be processed in compliance with POPIA.”
Under POPIA, personal information may only be processed on limited and justifiable grounds, which include:
- Compliance with a legal obligation.
- Protection of a legitimate interest of the data subject.
- Pursuit of the legitimate interests of the organization or a third party.
- Consent from the data subject.
Referring to the Enforcement Notice, Tlakula stated that the DBE failed to prove the legitimate interests they were pursuing or protecting by publishing the learners’ results in newspapers.
“If these three grounds do not apply, then consent kicks in. You have to then obtain consent.”
She noted that if the department appeals, 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. Next year this time, we should not be talking about the same thing.”
Gwarube stated that the DBE takes the Regulator’s case seriously, as it directly addresses the protection of personal information.
“While there may be learners who want their unique exam numbers published, and some people may argue that others won’t know your unique exam number because it’s not your ID number, at the end of the day, it is still personal information,” she said.
She acknowledged the importance of government processes evolving to prioritise the protection of personal information.
“Government processes need to get to a place where they are protecting personal information, even in their way of working, even in their processes,” she noted.
Gwarube also outlined the DBE’s approach moving forward.
“What we’ve said to them [he Regulator], and what I’ve committed personally to them, is to say we will have to be able to publish this year, because of the tight timeline that we’re affecting. However, we will make sure that for 2025, we will allow learners to choose whether or not they release – if they allow us to publish – their unique exam numbers in the press.”
