Information Regulator issues R5m fine notice to basic education department

The Information Regulator has fined the department of basic education (DBE) R5m for failing to comply with an enforcement notice in November which ordered the department to make an undertaking that it will not publish the 2024 matric results in the media. 

This follows the finding by the regulator that the department contravened sections of the Protection of Personal Information Act (Popia) by publishing the results in the media.

“The enforcement notice had ordered the department to provide an undertaking that it will not publish the results of the 2024 matriculants in newspapers within 31 days from the date on which the order was served,” said the regulator's spokesperson Mukelani Dimba.

The notice also ordered the department not to publish the results for the 2024 matriculants in newspapers and to make the results available to the pupils using methods that are compliant with Popia.

The regulator said should the department fail to abide by the enforcement notice within the stipulated time frame, it will be guilty of an offence, in terms of which the regulator may impose an administrative fine in an amount not exceeding R10m, or liable on conviction to a fine or to imprisonment of the responsible officials.

The 31 days given to the department expired on December 19.

According to the regulator, the department has not provided it with an undertaking that it will not publish the results of the 2024 matriculants in newspapers as ordered in the enforcement notice or any other communication in that regard.

The regulator said the department had the right to appeal the enforcement notice and said it had not been served with the appeal application by close of business on December 19 2024 despite media reports that the department had lodged an appeal against the decision with the regulator in the high court.

Last week, the department said it had filed papers in court in a bid to have the enforcement notice issued by the regulator set aside.

“The appeal means the enforcement notice has been suspended and the department will proceed and release results to media houses, who will publish in terms of the established practice in which only exam numbers are used,” department spokesperson Elijah Mhlanga said at the time. 

He said the department's argument is that publishing matric examination results in its current format in newspapers is “not information related to an identifiable pupil”.

It also does not contravene the Popia.

The department said the Information Regulator is bound by a court order that settled the lawfulness of the release and publication of the matric examination results in the present format in local newspapers.

Advocate Pansy Tlakula, chairperson of the regulator, said they understand from media reports the department intends to publish matric results in newspapers on or about January 13 2025, which it is prohibited from doing by the enforcement notice issued by the regulator.

Tlakula said the department cannot disobey lawfully issued orders of the regulator. She said the two orders issued by the regulator against the department have the fullest legal force and effect and must be complied with by the department until set aside or suspended by an appeal served on the regulator timeously.

“The regulator had not yet been served with the DBE’s appeal against the orders issued against it. For this reason, the orders remain in full force and effect and must be complied with,” Tlakula said.

She said the department has 30 days from December 23 to pay the administrative fine, or make arrangements with the regulator to pay the administrative fine in instalments or elect to be tried in court on a charge of having committed the alleged offence referred in terms of Popia.

The department said it had noted both the infringement notice and the media release issued by the Information Regulator regarding the R5m fine it had been slapped with. It maintained it had filed its appeal application and said the sheriff would serve the regulator with the department's papers. 

“The department will engage the Information Regulator on this matter via the state attorney and its counsel as a matter of urgency,” it said.

“The minister still maintains her view that intergovernmental issues can be resolved through dialogue and not resorting to adversarial legal proceedings.”

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