THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
In the matt er betw een:
THE INFORMATION REGULATOR OF SOUTH AFRICA
and
THE MINISTER OF BASIC EDUCATION
(NATIONAL DEPARTMENT OF BASIC EDUCATION)
THE DIRECTOR-GENERAL,
(IN THE DEPARTMENT OF BASIC EDUCATION)
SA NATIONAL EDITORS FORUM
ARENA HOLDINGS (PTY) LTD
AFRIFORUM NPC
Heard:
Delivered :
12 March 2026
3 June 2026
Not Reportable
Case no: 1484 59/2024
APPLICANT
1 ST RESPONDENT
2 ND RESPONDENT
JRD RESPONDENT
4TH RESPONDENT
5m RESPONDENT
2
JUDGMENT-APPLICATION FOR LEAVE TO APPEAL
Mooki J (Molop a-Sethosa J and Morgan AJ concur ring)
[1] The Information Regulat or seeks leave to appeal the dec ision by the Court condoning
the appeal by the Department of Basic Education, and the Court's sett ing aside of the
Regulator 's notices against the Department.
[2] The grounds of appeal are essentially as follows . The Regulator contends that the
Cour t had no power to condone the late filing of the appeal by the Department and
that the Court ought to have followed authorities referenced by the Regulator; that
the Court over -reached its domain when the Court decided the matter based on the
publicat ion of matric results not constituting the processing of "personally
identifiable informat ion", and that the Department did not prove any of its grounds
of appeal.
[3] The Regulator submits that the Court failed to follow binding authority. The Regulator
submitte d that the Court ought to have followed Mohlomi1 and that Mohlomi held tha t
"a Court does not have inherent jurisdiction to condone non-compliance with
statutory provisions ." This submission is not faithful to wha t was said in Mohlom i.
Mohlomi did not use the language referenced in the submission . Indeed, Mohlomi was
not deciding the question of whether the High Court had inherent power to condone
non -compliance with a period stipulated in a statute. The Court was dealing with the
constitutionality of sect ion 113(1) of the Defence Act ( 44 of 1957).
[4] The submission by the Regu lator is removed from what the court in Mohlomi said,
namely the following:
1 Mohlomi v Minister ofDefence 1997 (1) SA 124 (26 September 1996)
The wording of that looks odd. It appears to have presupposed a power
inherent in the courts to condone defaults of the kind covered which
needed to be preserved. But courts have no such inherent power, and none
derived from any source unless and until it is conferred on them. That the
sub-section grants them the power in the circumstances mentioned must
necessar ily be implicit in its terms, however, since they make no sense
otherwise.z
3
[5] Mohlomi was not dealing with the High Court's "inherent jurisdiction to condone non
compliance with statutory provisions," contrary to submissions on behalf of the
Regula tor. Mohlomi also was not answering the question whether a court can
condone non-compliance with a time-period only where there is express power that
permits granting condonation .
[6] The Regulator also referenced Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy
Coal South Africa Ltd3 as binding on this Court. It was submitted that the import of
this decision is that the appeal by the Departme nt lapsed because the appeal was not
served on the Regulator within 30 days of the period specified in section 97(1) of
POPIA. Finishing Touch did not address the power of a court to grant condonation
where an applicant failed to comply with a period stipulated in a statute. Finishing
Touch was concerned with the interpretation of a court order .4
[7] The Regulator submitted that the decision in Toyota South Africa Motors (Pty) Ltd v
Commissioner for the South African Revenue Service5 is not good authority for the
proposition that the High Court has power to condone non-compliance with section
97 of POPIA. There was no elaboration as to why this should be the case.
[8] Toyota concerned an appeal to the High Court from the Tax Court. The appea l was
made outside the stipu lated 21 business days. The matter eventually came before the
2 Para 17
3 (363/11) [2012] ZASCA 49 (30 March 2012)
4 See paragraphs 1, 13, and 20
5 2002 (4) SA 281 (SCA)
4
Supreme Court of Appea l, which framed the issue for determination as follows: "We
are dealing here with non-compliance with a statutory provision laying down the
time within which an appeal from the decision of the Special Court must be noted ."6
The Sup reme Court then said "It is of no practical assistance to seek to classify the
provision as peremptory or directory. The enquiry is simply: what did the legislature
intend? [ ... ]",7 and concluded that "In the circumstances, therefore, the legislature
must have intended the appellate courts to have the final say as to whether intending
appellants could proceed with the ir appeals or not." 8 The Supreme Court of Appeal
has endorsed the decision in Toyota. 9
[9) The Regulator submitted that courts do not give themselves powers, and that the
powers of a court are sourced in the Constitution and national legislation. This
statement is correct, but not in so far as the Regulator contends that a court may not
adjudicate a dispute absent express power to do so. The legal position was stated long
ago in Toyota, namely that the intention of the Parli ament behind the provision in
question is to be exam ined. I do not consider that the decision in AmaBhungane 10 is
at odds with the law as stated in Toyota. The court in AmaBhun,qane was dealing with
the exercise of power by a functionary. It did not make a statement on the law about
a court carrying out a judicial function in adjudicating a dispute.
[10) The Regulator further submitted that the decision in Phillips11 was not good law and
that the Court gave inadequate reasons for not following Compare Wellness Medical
6 Para 9
7 Para 9, internal citation omitted
a Para 9, 11
9 Neala v Park Avenue Body Corporate and Others (813/2023) [2026] ZASCA 16 (12
February 2026), para 50
10 Amabhungane Centre for Investigative journalism NPC and Another v Minister of justice and
Correctional Services and Others; Minister of Police v Amabhungane Centre for Investigative
Correctional Services and Others; Minister of Police v Amabhungane Centre for Investigative
Journalism NPC and Others 2021 (3) SA 246 (CC). See paragraph 76: "Yes, a substantive provision
conferring the power would have been a "nice-to-have", but I do not agree that its absence must
legally result in a lack of power."
11 Phillips and Another v Director of Public Prosecutions and Others 2003 (3) SA 345 (CC)
5
Scheme.12 No particular submission was made as to why Phillips is not good law. The
Court's view on Compare Wellness Medical Scheme is set out in the main judgement.
The submissions on behalf of the Regulator on the import of Compare Wellness
Medical Scheme remain unpersuasive.
[11] The Court did not, in the main judgement, make express reference to the source of its
autho rity in granting condonation. It is manifest, however, that the Court considered
that the power to grant condonation is implied. 13 That is because there will otherwise
be no event in the universe that would ever allow the making of an appeal outside the
30-day period stipulated in section 97 of POPIA. This would be inimical to the law by
restricting the authority of a court to render justice where it is merited; based only
on a view that a statutory provision does not reference an express power pursuant to
which a court would condone non-compliance with a stipulate ·d time period.
[12] I am not persuaded that the expression "personally identifiable information" offends
against the POPIA, or that it constitutes legislation by a court. The infringement notice
by the Regulator pertains to the way the Department published matric results. The
Regulator contended that the manner of publication breached POPIA, because the
conduct by the Department amounted to the publication of personal information of
students, in breach of POPIA. The Department denied that the mode of publication
entailed publication of personal information in breach of POPIA. The expression
"personally identifiable information" goes no further than a description of essential
facts in the dispute between the parties.
[13] The test for leave to appeal is settled . Section 17(1)(a) of the Superior Courts Act 10
of 2013 provides that leave may only be given where the court is of the opinion that
the appeal would have a reasonable prospect of success, or that there is some other
compelling reason why the appeal should be heard. The use of the word "would" has
compelling reason why the appeal should be heard. The use of the word "would" has
ra ised the threshold above that which applied under the repealed Supreme Court Act
59 of 1959: an applicant must satisfy the Court that there is a sound, rational basis
12 (267 /2020) [2020] ZASCA 91 (17 August 2020)
13 See para 23 of the main judgement
6
for the conclusion that another court would, not merely might, reach a differen t
result. 14 For the reasons set out above, I am not persuaded that the appea l enjoys a
reasonable prospect of success .
[14] I am also not persuaded that the application raises compelling reasons that warrant
granting leave to appeal. It is unnecessary to repeat what is recorded above in this
regard .
[15] I make the following order:
(1) The application is dismissed.
(2) The applicant is ordered to pay costs, such costs to include th e costs of Senior
Counsel on Scale C; the costs of Counsel otherwise being on Scale B.
--0 MOOK!
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
....
L MOLOPA-SETHOSA
JUDGE OF' THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I agree:
14 See The Mont Chevaux Trust v Tina Goosen and Others 2014 JDR 2325 (LCC) para 6; S v
Notshokovu [2016] ZASCA 112 para 2; and Member of the Executive Council for Health, Eastern
Cape v Mkhitha and Another [2016) ZASCA 176 paras 16-17.
Counsel for the Applicant:
Instructed by:
Counsel for the 1st and 2n d respondents:
Instructed by:
Counsel for the fourth and fifth respondents:
Instructed by:
Date heard:
Date of judgment:
7
M MORGAN
JUDGE (Acting) OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
K Tsatsawane SC (with T Moretlwe)
Diale Mogashoa Attorneys
M Oosthuizen SC
(with S van Helsdingen)
The State Attorney , Pretoria
Q Pelser SC
Hurter Spies Inc.
12 March 2026
3 June 2026