The department of basic education has lodged a review application with the Pretoria high court to have a notice barring the publication of matric examination results declared unconstitutional.
Basic education minister Siviwe Gwarube and her director-general, Hubert Mathanzima Mweli, filed the application last week seeking to have the enforcement notice by the Information Regulator (SA) set aside.
The regulator, an independent body, argues publishing the examination numbers of matric candidates contravenes the Protection of Personal Information Act (Popia).
This case will help set the record straight on whether the tradition of publishing matric results in the media can continue. Should the case be heard, it will also clarify whether the government acted unlawfully by publishing results.
The court’s outcome will affect thousands of matric candidates vying for the national senior certificate.
In the review application, Mweli says the department was in an “impossible situation” having a January 2022 high court order that stipulated it should publish the results as well as an enforcement notice that it was breaking the law in doing so.
He said the department sought the court’s intervention because it was in a legal conundrum.
“Despite the knowledge of the information regulator of this legal obligation and the 2022 court order, the department is faced with an enforcement notice issued on November 18 2024, imposing a legal obligation not to make those matric results available at all, not even in an anonymised format,” he said.
The regulator fined the department R5m for not complying with its enforcement notice.
Mweli disputed the regulator’s assertion that matric candidate examination numbers are identifiable and that it is possible for learners in the same school to identify other learners and their results because examination numbers are allocated sequentially.
“This alleged means of identification is fanciful, not reasonable and highly unlikely. The assumption that learners somehow know that examination numbers are allocated sequentially is false. This is not general knowledge and the allocation process, including examination numbers allocated to a particular learner, is regarded as confidential,” Mweli said.
Being the director-general for the department for 10 years, Mweli said he has not come across what the regulator alleges.
“This proposition assumes that the learner will remember or care to remember who the person was before or after him or her in the examination venue. The possibility of something like this occurring is so far-fetched and implausible that it can be disregarded as insignificant.”
Though the department initially decided not to continue with the publication of the results in 2021, citing privacy laws, Mweli said South Africans were in favour of publishing results.
“The response from the public demonstrated that the moral and legal convictions of SA society were in favour of the publication of the matric results in the media,” he said
“In all the years that it was the practice to publish matric examination results in the local newspapers, the department has not received a single complaint that such publication resulted in an infringement of or breach of privacy or harm whatsoever.”
The department also hasn’t received any complaints or allegations of harm or injury occasioned by the past publication of the matric results in the local newspapers, he said.
There had been cases of suicide when the department had published the names of matriculants.
Earlier this month, the high court dismissed an urgent application by the regulator which sought to interdict the release of matric results in the media.
In that legal challenge the regulator argued the department was “aware it infringed privacy laws” as it had previously ensured that matriculants signed consent forms for publication.
Mweli also disputed that: “The department endeavoured to obtain such a consent not because section 11 of Popia was the only available option or out of any sense of legal obligation to obtain consent such, but did so for practical reasons, in the spirit of co-operative governance and to spread awareness of Popia.”
Should the court review and set aside the enforcement notice, the department is asking that the R5m penalty be repaid to it.
Mukelani Dimba, spokesperson of the information regulator, told Business Day that amid legal challenges the regulator stood by its position that the department was acting unlawful by publishing results.
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