IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
In the matter between:
THE INFORMATION REGULATOR
And
MINISTER OF BASIC EDUCATION
DIRECTOR-GENERAL OF THE DEPARTMENT
OF BASIC EDUCATION
ANLE SPIES
AFRIFORUM NPC
MAROELA MEDIA LTD
THE SA NATIONAL EDITORS' FORUM
ARENA HOLDINGS (PTY) LTD CASE NO: 150121/2024
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
FIFTH RESPONDENT
SIXTH RESPONDENT
SEVENTH RESPONDENT
1
JUDGMENT
Tolmay J
1. The applicant brought an urgent application in which she seeks final interdictory
relief on an urgent basis. The relief seeks to interdict the respondents from
publishing or causing to publish the 2024 matric results other than to the
schools or dedicated SMS platforms. And also, to refrain from publishing it in
contravention of the enforcement notice issued by the applicant dated 6
November 2024. A declaratory order is also sought to order the Department to
comply with the enforcement order.
2. At this point only the urgency of the matter is decided. In that context the
background of the matter is of importance . The issue, i.e. the publishing of
matric results is not a new issue. It is common cause that for generations the
results have been published in the media, the advent of the Protection of
Personal Information Act 4 of 2013(the POPI Act) brought about a change in
the approach regarding the protection of personal information. This resulted in
an application launched during January 2022 by the first and second
respondents seeking certain declaratory relief as they were concerned about
the lawfulness of the continued publication of the results. The applicant was
cited in that application and indicated that she would abide by the court's
decision. The parties settled the matter and an order was made by agreement
2
qetween the parties. The applicant participated and contributed to the order that
was ultimately granted.
3. That order states that the matric results should be published, as was done in
the past, but should not reflect the names and surnames of the learners as was
done previously. The matric results were published in this manner in relation to
the matric results for 2021, 2022, 2023 and 2024. The applicant started with an
assessment of this practice during November 2021. Eventually the applicant
took umbrage with the publishing of the results in the manner envisaged in the
2022 court order, in a draft report to which the Department responded during
January 2024. The applicant was therefore aware of the view of the first and
second respondent since that date. Despite this the applicant took 1 O months
until 18 November 2024 to issue her enforcement notice.
4. The Department decided to appeal against the enforcement order to the High
Court in terms of s 97 of the POPI Act. This should be done within 30 days of
receiving the notice. The appeal was filed in time but was served on the
applicant 7 days out of time. The Department indicated that condonation for the
late service of the appeal will be sought from the court hearing the appeal. This
Court cannot merely ignore the fact that an appeal has been lodged, late or not.
The dispute, including the question of condonation , will ultimately be decided
by that Court.
5. It was argued on behalf of the applicant that insofar as the Information
Regulator was not prohibited from conducting the assessment, the opposing
3
respondents cannot rely on the January 2022 order to resist the enforcement
of the outcome of the assessment. It was argued that the position would have
been different if the January 2022 order prohibited the Information Regulator
from conducting the assessment. The January 2022 order, the applicant says,
could not have prohibited the Information Regulator from conducting the
assessment which gave birth to the enforcement notice and the orders.
Reliance was placed on Section 89(1) of the POPI Act and it was argued that it
applies whenever there is "an instance of processing of personal information ."
It follows, the applicant says, that the Information Regulator was empowered to
conduct "its own initiative" assessment , after the 2022 order. In this regard,
applicant argued it is important to remember that the "own initiative"
assessment was triggered by the publication of matric results in January 2023.
This is an important part of the context of this application according to the
applicant. It must be stressed that no persuasive reasons were provided for the
delay in bringing the application . The argument is that the enforcement notice
and the failure to comply with it triggered the urgency.
6. The urgency of this matter according to the first and second respondents was
caused by the Information Regulator herself as she took more than 10 months
before finalising the assessment and issuing an enforcement notice.
Furthermore , 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 is self
created.
4
7. The third to fifth respondents supported the arguments raised by the first two
respondents and insisted that any urgency, if any, was self-created.
8. I intentionally refrain to venture into the merits. The POPI Act, the role of the
applicant and the first two respondents in the execution of their respective
duties, the balancing of the protection of personal information with public
interest and freedom of the press are important and complex issues that should
be properly canvassed and ventilated in a 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.
9. The implementation and the application of the POPI Act in relation to the
publication of matric results have been contentious from at least the beginning
of 2022. Litigants, including state litigants, will be well advised to act
expeditiously and not wait until the last moment to get certainty about
contentious and complex legal issues. The urgent court should not be burdened
with complex disputes that could easily have been resolved in the normal
course, if the necessary steps were taken timeously . The assessment and
compliance notice can, in the circumstances of this case, not be the trigger for
urgency. The fact that section 97 provides for an appeal counters the argument
that the mere existence of an assessment and compliance notice and
subsequent non-compliance will render an application urgent. The urgency, if
any, is self-created and should not be countenanced by the court.
5
10. The interests of the effected learners should have taken centre stage in this
matter, it did not. There is nothing before me to indicate any prejudice to
learners. The applicant should at least in her 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. The whole dispute at this point
centres on the contradict ing views of the parties. The parties will be well advised
to determine what will ultimately be in the best interests of the learners. After all
it is their rights, we are dealing with. The present manner of publication has
been followed for at least three consecutive years, why should this year be
treated differently?
11. I therefore conclude that the matter is not urgent and should be struck from the
roll. The applicant should pay the costs of the respondents , including the costs
of senior counsel on scale C.
The following order is made:
1. The application is struck from the roll due to lack of urgency.
2. The applicant is ordered to pay the costs of the First to Fifth Respondents , the
costs to include costs of two counsel, where applicable, on scale C.
RTOLMAY
Judge of the High Court
Gauteng Division, Pretoria
6
Appearances :
Counsel for Applicant: Adv K Tsatsawane SC & Adv T Moretlwe instructed by Diale
Mogashoa Attorneys .
Counsel for 1st to 2nd Respondent: Adv M Oosthuizen SC & Adv S Van Helsdingen
instructed by State Attorney Office, Pretoria.
Counsel for 3rd to 5th Respondent: Adv Q Pelser SC instructed by Hurter Spies
Incorporated .
Date of Hearing: 7 January 2024.
Date of Judgment: 8 January 2024.
7