ZELDA VENTER
FOLLOWING Wednesday’s Gauteng High Court, Pretoria ruling that the application by the Information Regulator (IR) to interdict the Department of Basic Education from publishing the 2024 matric results in the media was not urgent, Basic Education Minister Siviwe Gwarube confirmed that the DBE will publish the results on January 14.
She also thanked the IR on social media for raising their concerns and said she will continue to work with the IR to address any further concerns in the interest of advancing education and supporting the IR.
The results will, however, be published using only the candidate’s exam number, as the court in 2022 ordered that no names may be made public.
Judge Ronel Tolmay struck the application from the court roll and ordered the IR to pay the costs. She found that the IR has created its own urgency in the matter and said this issue should have been resolved long before now in the interests of the learners.
The judge stressed that she did not deal with the merits of the application, but only dealt with urgency at this stage. She found that the IR’s urgency in rushing to court at the last minute, was self-created. The judge said this issue should have been brought to court earlier, on the normal roll and not by way of urgency.
Judge Tolmay said the issues to be ventilated were complex, as they involved the publishing of personal information Act as well as the rights of the media. These issues should only be ventilated in the urgent court if it is absolutely necessary, she said.
The IR said it had no choice but to turn to court now, as it became clear that the department refused to abide by an enforcement notice issued to it by the IR in November, ordering the department not to publish the results.
According to the IR, it only realised in December that the department refused to abide by the orders in the enforcement notice.
This followed an assessment done by the IR on whether it would infringe on the learners' rights to protection of public information if the results were published in the media. It was found to be the case, and the IR subsequently ordered the department not to publish the results this year.
The department, however, issued an appeal against the enforcement notice.
Judge Tolmay said the report on the assessment done was last year, and it took the IR 10 months to issue the enforcement notice in November. However, at the busiest time for the department - in December - it opted to rush to court. This, she said, is self-created urgency.
She also said she cannot ignore the fact that the DBE was going to appeal the IR’s notice. While their appeal has been lodged a few days out of time, the department said they had good reasons for this and they would ask the court for condonation in this regard.
The judge pointed out that the matric results have been published in the media for years. She said even after the issue turned in court again in 2022, where the court gave the green light for the results to be published, the results had been published.
She noted that the 2022 court order followed an agreement by the parties that the results may be published, and that the IR was a party to those proceedings.
Judge Tolmay also said no evidence was placed before her of any learner who complained that the results will yet again be published in the media this year. Nor was there any evidence to persuade her to entertain the application on an urgent basis.
She questioned that if the results were published for the past three years (since the 2022 order), why should this year be different.
Mukelani Dimba, executive responsible for education and communication at the IR’s office, meanwhile said that these issues will be ventilated before court at a later stage.
“We will now consider our position given the decision by the court, but I do expect that we are likely to come back to court on a normal basis. As the court said this was not urgent, it will mean that we will have to resort to the normal court proceedings for the issues to be ventilated.”
Dimba said the horse has bolted on the issue of interdicting the department from publishing the results as the issue is now moot.
“But the fact of the matter is, we said the DBE should give us an undertaking that they will not publish the results. Our order still stands. We will see what happens next week if there is a publication of the matric results. If it is published, it will be in violation of the enforcement notice which still stands, because there is no appeal yet.”
AfriForum, which was a respondent in this application as it was one of the applicants in the 2022 application, meanwhile welcomed the court’s ruling.
Alana Bailey, AfriForum’s Head of Cultural Affairs, said the IR argued that the publication of the matric results in public media would be a violation of the matriculants’ right to privacy, but on the contrary, the judge ruled that it is in the public interest and that the results should therefore be published on public platforms and in printed media.
“The case where the merits of the withholding or publication of the results will be decided will follow later in the year, but for now, the urgent application was necessary for clarity on whether the results may be published next week or not.”
“The ruling is a victory for the matriculants for whom the publication of their results in this way is of great importance. It is also part of the larger conversation that is essential to gain more clarity about the distinction between the right to privacy and the public interest,” Bailey said.