The Information Regulator has suffered another legal setback in its long-running dispute with the Department of Basic Education (DBE) over the publication of matric results in the media, safter the Gauteng High Court in Pretoria dismissed its application for leave to appeal.
In a judgement handed down on 3 June, the court ruled the regulator had failed to demonstrate that an appeal against an earlier ruling in favour of the DBE had reasonable prospects of success, or raised compelling reasons warranting consideration by a higher court.
In a statement to ITWeb, Nomzamo Zondi, spokesperson for the Information Regulator, says: “We note the judgement and we are considering it and weighing the options available to us. We have 30 days since the pronouncement of the court to decide if we will be submitting a petition to the Supreme Court of Appeal.”
The dispute stems from enforcement and infringement notices issued by the regulator against the DBE over its publication of National Senior Certificate examination results in the media.
Headed by advocate Pansy Tlakula, South Africa’s data privacy enforcer in December 2024 issued the DBE with an infringement notice, in which it ordered the department to pay an administrative fine of R5 million, following its failure to comply with the enforcement notice issued by the regulator 18 November 2024.
The DBE was issued with the enforcement notice for contravention of various sections of the Protection of Personal Information Act (POPIA) after it failed to obtain consent for the publication of matric results from learners or parents/guardians of learners that sat for the 2023 National Senior Certificate examinations, according to the regulator.
However, the education department lodged an application to set aside the enforcement notice issued by the watchdog regarding the publication of matric results in newspapers.
The regulator argued that the department’s practice of publishing matric results contravened POPIA by unlawfully disclosing learners’ personal information.
However, in its earlier judgement, the High Court set aside the notices and condoned the DBE’s late filing of its appeal against the regulator's decision.
Power battle
Seeking leave to appeal that ruling, the regulator argued that the court lacked the power to condone non-compliance with the statutory timeframes set out in POPIA and had incorrectly concluded that the publication of matric results did not amount to the processing of personal information.
The court rejected those arguments and found that the authorities cited by the regulator did not support its contention that courts lack the power to condone non-compliance with statutory deadlines unless expressly authorised by legislation.
Instead, the judgement relied on established case law indicating that courts may infer such powers where necessary to ensure justice is served.
“It is manifest... that the court considered that the power to grant condonation is implied,” the judgement states.
The court further held that denying such authority would mean there could never be circumstances under which an appeal filed outside POPIA's prescribed 30-day period could be considered.
“This would be inimical to the law by restricting the authority of a court to render justice where it is merited,” the judgement says.
The regulator also challenged the court’s use of the phrase “personally identifiable information” in its earlier ruling, arguing the term does not appear in POPIA and amounted to judicial overreach.
No prospects of success
The court dismissed that argument, finding that the phrase merely described the central issue in dispute – whether the manner in which matric results were published disclosed personal information protected by POPIA.
The court found that the expression “goes no further than a description of essential facts in the dispute between the parties”.
Applying the test for leave to appeal under the Superior Courts Act, the court concluded that the regulator had not shown that another court would likely reach a different conclusion.
“The appeal enjoys [no] reasonable prospect of success,” the judgment states. The court also found that the matter did not raise compelling reasons justifying an appeal.
As a result, the application for leave to appeal was dismissed, with the Information Regulator ordered to pay legal costs, including the costs of senior counsel.
The ruling marks a significant victory for the DBE and media organisations that supported the publication of matric results, including the South African National Editors’ Forum and Arena Holdings, which were cited as respondents in the matter.
ITWeb has reached out to the DBE for comment.
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