Publication of matric results hangs in the balance

The Pretoria high court is expected to pass judgment on Wednesday morning on whether the application brought by the Information Regulator (IR) to prohibit the publication of matric results in newspapers is urgent. 

The department of basic education is set to release the results next Monday.

Judge Ronel Tolmay, during the hearing on Tuesday, decided to hear submissions from the IR, the department of basic education and AfriForum on whether the application should be heard on an urgent basis, and did not focus on the merits of the IR’s application.

Arguing that the application was urgent, advocate for the regulator Kennedy Tsatsawane SC said an impression was created that the case for urgency kicked in from January 2022 when judge Anthony Millar made an order concerning the publication of 2021 matric results in January 2022. 

Tsatsawane said the suggestion was that it was at this moment that the regulator should have taken steps to bring a legal challenge on the lawfulness of the publication of matric results in newspapers.

He said this was incorrect, because the suggestion was that the order of January 2022 prevented the regulator from publishing its prohibition notice in November last year, prohibiting the department from publishing the 2023 matric results in newspapers.

Tsatsawane said the 2022 application was brought by matriculants who were concerned that if their names were not published in newspapers, they might not get them on time. The applicants sought a declaratory order authorising the publication of matric results in newspapers.

“That order was not granted. If that order had been granted, we would not have been here, because there would have been a general declarator that it was lawful to publish matric results in newspapers,” Tsatsawane said. 

Tsatsawane said the order of Millar regulated the release of matric results written in 2021.

He said it was in 2023 that the regulator started to conduct the assessment on the publication of matric results in newspapers, as authorised by the Protection of Protection of Personal Information (Popi) Act. 

“We submit if you find that the order of Millar prevented the regulator from conducting that assessment, then we lose the application. It cannot be so. If you interpret it in that fashion, it would then mean it prohibits the regulator from conducting its statutory functions.” 

Tsatsawane said one of the findings of the regulator in November last year was that the publication of the 2023 results in newspapers without the consent of pupils was unlawful. The regulator then sought an undertaking from the department within 31 days that it must not publish the matric in newspapers.

Tsatsawane said the matter became urgent when the department refused to comply with the November 2024 enforcement order by the regulator.

He said any serious regulator would be concerned if another organ of state indicated it would not comply with its orders. 

“The results are going to be published on January 13. If the relief we seek is not granted, then the regulator could not obtain substantial redress at a hearing in due course, because by then the results would have been published and that the orders which it had issued, together with an enforcement notice, would have been rendered meaningless by another organ of the state,” Tsatsawane said.

However, Marius Oosthuisen SC, for the department, said the urgency the regulator sought was self-created. Oosthuisen said there was a clear link between what was authorised by the 2022 court order and Tuesday’s proceedings

“Today, the information regulator, after more than three matric exam rounds were published, seeks to interdict what was authorised by judge Millar,” he said. 

Oosthuisen said the regulator was cited as a party in the 2022 case and was part of the process in agreeing to that court order. 

“The fact that there is an order which authorises this conduct makes it lawful. It made it lawful in January 2022, 23 and 24 and it will also make it lawful in January 2025. The regulator had all the time since 2022 to do something about this court order. They elected not to do so. They accepted the court order through their conduct.”

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