ZELDA VENTER
THE thousands of learners who wrote matric last year will have to wait until Wednesday to hear whether their results will be published in the media next week or not.
Judge Ronel Tolmay on Tuesday heard legal arguments by the Information Regulator (IR) pertaining to its submissions that the matter is urgent. The IR wants to interdict the Department of Basic Education (DBE) from publishing the 2024 matric results in the media. It maintained that the department has not obtained the go-ahead from the students that their results may be published and the department must issue the results via its SMS line or the learners can fetch it at the schools where they wrote the exams.
Judge Tolmay, at the start of Tuesday’s proceedings, made it clear that she will at this stage only hear arguments regarding the urgency of the matter. She refused to, for now, entertain arguments regarding the merits of the application.
The IR must first overcome the first hurdle - urgency - before it can proceed with its case. If the judge ruled the matter not to be urgent, it would follow that the results will be published next week. If she ruled in favour of the IR - that it is urgent - all the parties involved will present their arguments on the facts of the case.
Advocate Kennedy Tsatsawane SC argued on behalf of the IR that the matter is of utmost importance to the learners and the public and thus it is urgent. Judge Tolmay responded that she is fully aware of the importance of the case but she questioned why she should deal with it on an urgent basis.
The judge pointed out that the historical position over the years was that the results were published in the media and she questioned who would be prejudiced if this was the position again regarding the 2024 results.
She said she was concerned that there was a pending appeal by the department against an enforcement notice the IR issued against the department in November last year, in terms of which it was ordered not to publish the 2024 results.
The IR said that after an assessment done in 2023, it was found that publishing the matric results will go against the Protection of Personal Information Act (POPIA).
While the department still has to get the go-ahead to proceed with their appeal, as it was lodged a few days late, the issues regarding POPIA and the IR’s stance that it will be violated if the results are publicly published are expected to be ventilated during those proceedings.
Judge Tolmay also pointed out that this urgent application before her deals with complex issues such as POPIA, and the urgent court is not the forum to deal with these issues.
The court in 2022 ruled in favour of publishing the matric results in the media, following an application at the time by a learner. This was after the department that year considered not to publish the results.
In an order to which all the parties consented to at the time - including the IR - it was agreed that the results will be published only using the exam numbers of the learners and not their names.
Both the department and Afriforum, who opposed Tuesday’s urgent application, pointed out that the IR was happy to consent to the order and did not object to the results being published the following few years. Yet, the IR only now objected, they said, which does not render the matter urgent.
Tsatsawane countered this by arguing that it was only after the 2023 assessment done by the IR that it became clear that the publishing of the results violated the learner’s rights to protection of their personal information.
He maintained that the IR could not turn to court earlier, as it only came to light last month that the department intended not to adhere to the enforcement notice and that it intended to forge ahead in publishing the latest results.
Judge Tolmay, however, had many questions regarding the issue of prejudice. She was particularly concerned that if she granted the order for the results not to be published, whether it would not prejudice especially disadvantaged students who do not have devices to access the department’s SMS lines to see whether they had passed.
She also raised concerns about others who attended schools in rural areas and are not there anymore and who may not be in a position to return to their schools to fetch their results.
This caused Tsatsawane to respond that the judge assumed these learners could buy newspapers. The judge said she did not assume anything.
Advocate Marius Oosthuizen, acting for the department, argued that the 2022 order still stands in place which gives consent for the results to be published. “Three more matric exams results have been published since then. The IR was part of the agreement to the order, and it is binding on them,” he said.