Court rules 2024 matric results can be published as usual

The regulator’s urgent application had sought an interdict to prevent the publication of the results. Arguments in the case, in which the regulator opposed the Department of Basic Education and AfriForum, were heard on Tuesday.

Judge Ronel Tolmay ruled on Wednesday morning that the case was not urgent and removed it from the roll with costs, pointing to the self-created nature of the urgency and the lack of evidence of harm to pupils.

Tolmay said it is important to note that litigants, including state litigants, should be urged to act swiftly and not delay in seeking clarity on contentious and complex legal matters.

“The urgent court should not be burdened with complex disputes that could easily have been resolved in the normal calls if the necessary steps were taken timelessly,” she said.

The regulator conducted an assessment in 2023 to examine the legal implications of publishing the results. The report was finalised in November 2023 and subsequently sent to the department for comments later that month. Following the department’s response in January 2024, the regulator issued an enforcement order in November 2024 directing the department to cease publishing the results. 

“The Information Regulator timed that enforcement notice for November 2024 which, to her knowledge, is the busiest time of the year for the department, as far as the matric examinations are concerned, and just before the commencement of the traditional holiday season. Thus the urgency was self-created,” the judge said. 

Tolmay said she chose not to delve into the merits of the case, including the Protection of Personal Information Act (Popia), the roles of the applicant and the first few respondents in fulfilling their respective duties, as well as the complex and important issues surrounding the balance between protecting personal information, public interest and press freedom.

“These are important and complex issues that should be properly canvassed and ventilated, 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. 

Tolmay said the current method of publication has been in use for at least three consecutive years, and questioned why this year should be treated differently. 

“The interests of the affected learners should have taken centre stage. It did not. There is nothing before me to indicate any prejudice to learners. The applicant should, at least in assessment or papers before this court, have dealt with that. It is also important to note that no evidence of any complaints by learners were placed before me,” she said. 

In November 2024, the regulator prohibited the department from publishing the National Senior Certificate exam results in the media. It issued an enforcement notice to the department for noncompliance with Popia. The independent body found that the department had violated the conditions for the lawful processing of personal information by failing to obtain consent for the publication of the results, either from the pupils themselves or from their parents/guardians, for those who sat for the 2023 exams.

The regulator instructed the department to, among other things, provide an undertaking not to publish the 2024 results in newspapers within 31 days. When it failed to comply, the regulator sought legal action.

Judgment welcomed 

AfriForum was added as an interested party in the case, and welcomed the judgment. Alana Bailey, AfriForum’s head of cultural affairs, said the ruling is a victory for the matriculants for whom the publication of their results in this manner holds great importance.

“It is also part of the larger conversation that is essential to gain more clarity about the distinction between the right to privacy and the public interest,” she said. 

The case that will address the merits of withholding or publishing the results will be heard later in the year. Basic Education Department spokesperson Elijah Mhlanga said there are specific issues they are bringing to the attention of the Information Regulator, and want the courts to mediate in this matter. 

“The outcome of that process will be important not just for the department, but for the Information Regulator itself, in terms of how it interacts with organisations like us that handle millions of people’s information. So we are seeking that real clarity so that we can set up systems that will fully comply with Popia,” he told journalists in the court.

Mhlanga said the regulator is a relatively new organisation still working to establish itself in terms of its legal responsibilities. He added that it’s important to understand the regulator’s position as it needs to assert its authority and ensure its presence is felt, since its mandate is crucial for the country.

“Their establishment is appropriate. It’s something that we need. But now let’s get down to the details. How do we comply? As they are the custodians, so we are working together, the courts are actually very helpful in terms of interpreting the provisions in the Act and how we should work around those complex terminology that’s there and some of the requirements that we need to comply with.” 

Basic Education Minister Siviwe Gwarube thanked the regulator for raising its concerns, and the courts for offering clarification on the matter. She also reiterated her commitment to working closely with the regulator to address any further concerns, with the aim of advancing education and supporting its efforts. DM