Legal Articles

On 18 January 2022, the North Gauteng High Court delivered a ruling to the effect that the Department of Basic Education must publish the matric results of learners in the media as was the practice before. City Press and the Mail & Guardian reported that the Court, however, made it a point that the names and surnames of the learners must not be published.

According to the order, the basic education department will make the national senior certificate results available to be published on public media platforms, as well as at the schools the learners attended, as in previous years. However, there is one crucial difference:  personal details, like the first and last names of the learners, may, however, not be published. Instead, learners’ results will be published only with their individual exam numbers. (Words in red are our emphasis) Mail & Guardian 18 January 2022.

The Department of Basic Education in its own statement thereafter announced that,

This means that the Department will make available the results to stakeholders who requested access. The conditions of the court ruling must be taken into account in line with the provisions of the Protection of Personal Information Act 4 of 2013. (18 January 2022)

The above matter had been brought before the Court by a learner Anle Spies, who was joined by Afriforum and Maroela Media.

POPIA Act not always Rational

The motivations behind the application, which was not opposed, was that the decision was irrational because publishing the results was in the public interest.

Further, it was submitted that there are still communities with challenges for learners to access the results from the centres that they sat down for their exams at, whereas accessing results ought to be a matter of urgency in most instances. Internet access also, remained a challenge in some communities for the learners to access results online. These considerations weighed in favour of the publishing of the results in the media.

On its own part, the Department had submitted that for the Department to publish results and be in compliance with the Protection of Personal Information Act 4 of 2013 (POPIA), consent ought to be given by each learner who sat for the exams, which is not easy practically.

POPIA indeed requires that entities which gather and process personal information must acquire the consent of the data subject before publishing any of their personal information. Under the circumstances and with particular reference to this judgment, the Court ruled that names and surnames of the learners must not be published (as this indeed violates POPIA). Therefore, the results would be published, only reflective of the examination number of the learner and not with any other details.

City Press further reported that,

In an affidavit, Susan Lombaard, a journalist and chief executive of Maroella Media, echoed the Sanef sentiment. She said the “devastating consequences” also extended to universities, bursary funds and institutions of financial support that had planned to advertise on media platforms for the publication of the matric results.

The above, points to a commercial disappointment it would have been had the decision not to publish the results stood.

As things stand, it is not clear whether the Department or any interested party would appeal or bring a fresh application against the decision of the North Gauteng High Court. The Department has indicated that it would abide by the decision of the Court.

The publishing of details that easily identify a learner will obviously be in violation of the POPI Act, and the Department indicated that it would publish the results albeit without details that identify any learner in line with conditions of the judgment to comply with POPIA.

POPIA Act Compliance

It ought to be clear that the publishing of the results is not in violation of POPIA per se, but that the format in which they are published is what decides the day in terms of legality. To the effect that the results are published without details that easily identify a learner by third parties, this would not be in violation of POPIA but should the results be published with names and surnames, which the Court ordered against, will definitely require the consent of the concerned party (data subject).

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