Spies and Others v Minister of Basic Education and Others (1652/2022) [2022] ZAGPPHC 2 (18 January 2022)

80 Reportability

Administrative Law

Brief Summary

Administrative Law — Right to Access Information — Publication of National Senior Certificate results — Applicants sought an order compelling the Minister of Basic Education to publish the National Senior Certificate results on public platforms, as previously practiced, while ensuring the anonymity of learners' names. The First Respondent's resolution to withhold publication was challenged. The court held that the Minister was obliged to publish the results in the manner requested, setting aside the prior resolution and ordering costs in favor of the Applicants.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter was an urgent application brought in the High Court of South Africa, Gauteng Division, Pretoria, before Miller J, in which the applicants sought immediate relief concerning the publication of the National Senior Certificate (NSC) results on public platforms.

The parties were Anle Spies (first applicant), AfriForum NPC (second applicant), and Maroela Media Ltd (third applicant), as against the Minister of Basic Education (first respondent), the Information Officer of the Department of Basic Education (second respondent), the Information Regulator of South Africa (third respondent), and the Chief Director: Media Liaison, National and Provincial Communication, Department of Basic Education (fourth respondent).

Procedurally, the application was enrolled and heard as an urgent matter. The court granted condonation for non-compliance with the normal rules and timeframes and dealt with the matter under the urgent procedure.

The general subject-matter of the dispute concerned whether the Department of Basic Education’s decision (recorded in a letter dated 10 January 2022) not to follow the prior practice regarding publication of NSC results on public (media) platforms should be set aside, and whether the Minister should be ordered to publish the results publicly in an anonymised form.

2. Material Facts

The court’s order reflects that the NSC results were, in prior years, published on public platforms (media platforms) concurrently with the results being made available to the schools attended by learners. This prior practice was treated as the relevant baseline against which the contested decision was assessed.

A decision by the first respondent, alternatively the fourth respondent, was communicated in a letter dated 10 January 2022 (annexure “NoM1” to the order). The order indicates that this decision constituted a “resolution” which the applicants sought to have set aside.

The order further reflects a material feature relevant to the relief granted: any publication directed by the court was required not to reflect the first names and/or surnames of learners. The anonymisation requirement was part of the relief as granted and therefore forms part of the factual framework the court treated as material to the outcome.

3. Legal Issues

The central legal questions the court was required to determine, as appears from the relief granted, were whether non-compliance with ordinary procedural rules should be condoned and the application treated as urgent in terms of the applicable rule, and whether the challenged “resolution” reflected in the 10 January 2022 letter should be set aside.

A further central question was whether the court should grant mandatory relief directing the first respondent to publish the NSC results on public platforms, and if so, on what basis and with what limitations, particularly regarding the exclusion of learners’ names and surnames.

On the face of the order, the dispute primarily concerned the application of procedural rules to the circumstances (urgency and condonation) and the granting of remedial relief (setting aside the resolution and directing publication in an anonymised manner), rather than the determination of contested factual disputes.

4. Court’s Reasoning

The judgment text provided is in the form of an order and does not set out detailed reasons. The reasoning that can be distilled from the order is therefore limited to what is necessarily implied by the relief granted.

In relation to procedure, the court applied the urgent procedure in terms of Rule 6(12) and granted condonation for non-compliance with normal rules and timeframes, which indicates that the matter was accepted as sufficiently urgent to warrant truncated process.

In relation to the merits and relief, the court ordered the first respondent to publish the NSC results on public platforms as was the practice in previous years, and required that this publication occur concurrently with the results being made available to the schools attended by learners. The court further imposed a limitation that the publication must not reflect the first names and/or surnames of learners, which reflects that the relief was structured to require publication while excluding identifying particulars.

The court also set aside the resolution (attributed to the first respondent, alternatively the fourth respondent) contained in the 10 January 2022 letter. The setting-aside order indicates that the court considered the impugned resolution incapable of standing in the face of the relief the applicants sought and obtained. The costs order on an unopposed scale indicates that the court treated the matter as unopposed for purposes of costs.

5. Outcome and Relief

The court granted condonation and directed that the application be enrolled and treated as urgent in terms of Rule 6(12).

The court ordered the first respondent to publish the NSC results on public (media) platforms, concurrently with making the results available to the schools attended by the learners, on the basis that this had been the practice in previous years. The publication was expressly directed not to include the first names and/or surnames of any learners.

The court set aside the resolution of the first respondent, alternatively the fourth respondent, as reflected in the letter dated 10 January 2022 (annexure “NoM1”).

The court ordered the first respondent to pay the applicants’ costs on an unopposed scale.

Cases Cited

No cases are cited in the text provided.

Legislation Cited

No legislation is cited in the text provided.

Rules of Court Cited

Uniform Rules of Court, Rule 6(12).

Held

The application was treated as urgent and non-compliance with the ordinary rules and timeframes was condoned under Rule 6(12). The impugned resolution recorded in the 10 January 2022 letter was set aside. The Minister of Basic Education was directed to publish the NSC results on public (media) platforms concurrently with the release of results to schools, subject to the condition that the publication must not include learners’ first names and/or surnames. Costs were awarded against the first respondent on an unopposed scale.

LEGAL PRINCIPLES

The court applied the principle that, under Rule 6(12), a court may condone non-compliance with ordinary procedural rules and permit a matter to be heard as urgent where the circumstances justify that approach.

The relief further reflects the principle that a court may grant mandatory remedial orders directing a public authority to take specific steps, and may tailor such relief with conditions that limit the scope of the order, including conditions directed at excluding personally identifying information (here, learners’ first names and surnames) from publication.