Matric results: regulator goes to SCA to stop publication of marks

After losing three bids in the high court to stop the publication of matric results in newspapers, the Information Regulator has turned to the Supreme Court of Appeal (SCA) to stop the years-old tradition.

The case is a landmark one for the regulator, lodged in accordance with the Protection of Personal Information Act (Popia).

Popia was signed into law in 2013 to promote the protection of personal information processed by private and public bodies and to ensure promotion of access to information.

Should the regulator win the case at the SCA and the matter not be appealed in the Constitutional Court, matric results will cease to be published nationally using learners’ exam numbers.

The regulator, an independent body, has had three unlucky runs in convincing the high court in Pretoria that the publishing of matric results, even without names or ID numbers of matriculants, breaches privacy laws and should be stopped.

Appealing against the high court majority judgment by judge Omphemetse Mooki, information regulator commissioner Mfana Gwala argues that the department of basic education has a legal obligation to release matric results directly to learners, rather than publish them in newspapers for all to see.

The department of basic education “is obliged to release matric results directly to the learners themselves and not to any unauthorised person, but it is not obliged to publish them in newspapers”, Gwala contends.

“There is no person who can claim to have a right to be informed of any learner’s matric exam results through newspapers.”

The department has no legal basis to justify the publication of matric results in newspapers, Gwala argues, because it has no contract with newspaper outlets.

“There is no contract in terms of which the [department] is obliged to publish matric exam results in local newspapers.”

There is no person who can claim to have a right to be informed of any learner’s matric exam results through newspapers.—  Mfana Gwala

The genesis of the biggest legal showdown by the regulator against the department and minister Siviwe Gwarube was a November 2023 assessment by the regulator that probed whether the publication of the matric results in newspapers was compliant with Popia.

After the assessment the regulator issued a notice to the department that it must not publish the 2024 matric results in newspapers and must make the results available to the learners using methods compliant with Popia, such as each learner obtaining their results from the school or using a secure SMS platform.

“Matric exam results are personal information of the learners,” Gwala maintains.

The department currently publishes matric results using exam numbers of learners, which the high court found does not breach privacy laws. The department stopped publishing learners’ surnames in 2014 after the establishment of Popia.

Gwala argues the publication of matric results in newspapers using exam numbers and the relevant results still makes it possible for learners to be identifiable, which is prohibited by privacy laws.

“Matric exam numbers are issued sequentially per school, and matriculants sit in their relevant exam rooms sequentially according to their exam numbers.

“It is, therefore, possible for matriculants to be able to determine the exam numbers of their fellow matriculants by simply looking at the sequence of exam numbers published in the local newspapers and their seating arrangement in their exam rooms.”

Mooki, in the high court, described the argument by the regulator as “fanciful”.

“I agree with the department that the regulator’s contention is fanciful. Its approach is akin to a poorly constructed thought experiment. No empirical evidence supports the position,” Mooki said in dismissing the legal argument.

He found the regulator’s stance did not reflect events in the real world.

“It would be a very unusual learner who, having prepared for exams, having spent weeks sitting for various papers and having spent weeks awaiting results, would care to recall who sat next to the learner during exams, work out from the sequence of exam numbers, and then have thoughts about how that other learner performed in the exams.”

Gwala argues the constitution does not give the department authority to publish matric exam results in local newspapers.

“The DBE [department of basic education] is by law prohibited from publishing personal information of learners such as their matric exam results in a manner which makes them identifiable,” he says.

Matric results get published in print media, and Arena Holdings, which owns the biggest national newspaper titles, including Sunday Times, Sowetan and Business Day, is a respondent in the litigation. The company has not opposed the litigation by the regulator but provided an explanatory affidavit to the high court as a publisher of matric results.

The case, which tests whether the publication of matric results in newspapers breaches privacy laws, will now be decided by a full bench of the SCA.