By Lehlohonolo Lehana.
The Department of Basic Education (DBE) has confirmed that it will proceed with the release of the 2024 matric results to the media, following a legal battle with the Information Regulator.
DBE approached the High Court in Pretoria on Friday to challenge an enforcement notice issued by the Information Regulator, which had prohibited the public release of matric results.
The regulator’s preliminary report concluded that the publication of the matric results, without the consent of the parents or guardians of the learners or the learners who are above the age of 18, is in violation of the POPI Act.
Section 11 of Popia provides that personal information may only be processed if one of the following conditions is met:
“(a) The data subject, or a competent person in the case of a child, consents to the processing;
“(b) The processing is necessary to perform or conclude a contract to which the data subject is a party;
“(c) The processing complies with a legal obligation imposed on the responsible party;
“(d) The processing serves to protect the legitimate interests of the data subject;
“(e) The processing is essential for the proper performance of a public law duty by a public body;”
“(f) The processing is necessary for pursuing the legitimate interests of the responsible party or a third party to whom the information is provided.”
The enforcement notice stated that the department failed to demonstrate that publishing matric results in newspapers was necessary for concluding or performing any contractual obligation related to learners and that the department admitted it did not secure consent from learners over 18 years old or from the parents or guardians of learners under 18 who participated in the 2023 National Senior Certificate examinations, yet proceeded to publish their personal information in newspapers.
However, the department argues that the publication of the results in its current format, which only consists of the examination number and the results, is not information that relates to an identifiable learner.
In a statement, the department says an enforcement notice under section 95(1) of the POPI Act can only be issued for past or present breaches of personal data protection. Therefore, the proactive enforcement notice, served by the Information Regulator, is invalid.
It further said that the Information Regulator cannot simply claim that the department has “failed to demonstrate” compliance with section 11(1) of the POPI Act. It must show actual non-compliance with the Act regarding past or present breaches of personal data protection before issuing an enforcement notice.
“The Information Regulator did not take into consideration the factors highlighted by the department in its court papers,” said Basic Education spokesperson Elijah Mhlanga.
“The department will therefore proceed to release the results in the newspapers, because with the appeal being lodged, it means the enforcement notice has now been suspended”.