The issue of prejudice took centre stage at Tuesday’s high court hearings about the publication of matric results, with lawyers struggling to provide statistics.
The Information Regulator, the plaintiff, and the basic education department, one of the respondents, battled in the Pretoria high court to explain the extent of prejudice to candidates and could not provide statistics in the matter concerning the publication of matric results.
The regulator, who is seeking to interdict the publication of the results, failed to provide statistics of matriculants who could be disadvantaged by publishing the matric outcomes in the media.
The regulator filed an urgent application to obtain an interdict against the publication of the 2024 matric results. The results are set to be released on January 14.
Judge Ronel Tomay, who is considering the urgency of the case, asked advocate Kennedy Tsatsawane, representing the regulator, whether the organisation had considered the impact of halting the publication on candidates from improvised homes.
If publishing in the media was stopped, matriculants could still get their results at schools and through SMSes, the regulator said.
“The one thing you have not addressed to my satisfaction is the question of prejudice. What about the millions of matriculants and parents who do not have access to a phone and an SMS line? Won’t they be prejudiced?” Tomay asked.
“If you are somewhere in a village or without a connectivity or far away from your school, isn’t the prejudice much more or greater? As we know a lot of our people are impoverished, but they can go to the shop to get the paper,” the judge said.
Tsatsawane, however, argued that not all learners could afford to buy newspapers.
Inasmuch as the regulator failed to furnish the court with figures of learners disadvantaged by a possible interdict, the basic education department also struggled to furnish the court with figures to substantiate the impact of stopping the publication of results.
For years it has been a tradition in SA communities to buy newspapers on the day of results and share the newspaper among various homes.
In January 2022, the Pretoria high court issued an order for the department to publish matric results in the media but to omit candidates’ names.
Since then, matric results have been published by the department using learners’ examination numbers as a move to protect their identities.
Privacy laws
The regulator, however, argued that an assessment in 2023 found that the publication of results still infringed privacy laws.
Tsatsawane insisted that the department was aware of it, as it had embarked on a process of providing forms to learners’ parents to get their consent.
“The [department] by issuing the form accepts that the dissemination of matric results by issuing examination numbers to newspapers does contravene Popia [Protection of Personal Information Act] and for that reason they needed the consent,” he told the court.
He said the department, which developed the SMS line, could have not done so if it believed the learners would not have access to it.
Tomay said her understanding of the digital development by the government was that it was in the process of being formulated, and should consider the poor.
“This is a developing policy and will have to take into consideration the realities of our country and their abilities. Seeing that the Popia is relatively new and we have constraints in our country, I understand that this may be the way to go about it in the future but it doesn’t mean the court can ignore the realities of this country,” she said.
Tsatsawane said the factors raised by the judge were not flagged in the court papers by the department and AfriForum. He requested Tomay to not raise the circumstances from the bench.
“The [department] remains responsible for making the results available. It is not the [department’s] case that there is a long list of students who are not going to obtain the results unless they are published in the papers. That case has not been made.”
Tomay also asked AfriForum, which is also opposing the application, the same question about the impact of publishing the results.
AfriForum representative advocate Quintus Pelser said the publication of matric results would not disadvantage matriculants.
“There was no uproar in 2022, 2023 and there was no uproar [or] prejudice that was suffered in 2024. There is no evidence of a single complaint.”
Judgment is expected to be passed on Wednesday.
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