- The High Court has dismissed the Information Regulator’s request to appeal its defeat in the dispute over matric results.
- This means the Department of Basic Education’s win stands, and the Regulator’s enforcement notices remain set aside.
- The court found the proposed appeal had no reasonable chance of success and saw no compelling reason for it to go ahead.
The Department of Basic Education’s win over the publication of matric results remains intact after the Gauteng High Court in Pretoria refused to let the Information Regulator appeal the earlier decision.
This decision keeps the earlier judgment that set aside the Regulator’s enforcement notices in place. Unless a higher court agrees to hear a further petition, the department can continue publishing matric results as approved.
The Information Regulator of South Africa brought the application against the Minister and Director General of Basic Education. The South African National Editors’ Forum, Arena Holdings and AfriForum also took part in the proceedings. Judge O Mooki delivered the judgment, joined by Judge L Molopa Sethosa and Acting Judge M Morgan.
Background to the dispute
The dispute began over how the department published matric examination results and whether that process involved the unlawful use of personal information, according to the Protection of Personal Information Act.
The Information Regulator issued notices against the department, but these were set aside when the Department successfully challenged them in court. Unhappy with the outcome, the Regulator asked for permission to appeal.
The Regulator argued that the court was not allowed to excuse the department for filing its appeal late. It also claimed the court did not follow binding legal precedents, overreached by deciding the publication of matric results did not involve processing "personally identifiable information", and was wrong to find that the Department had valid grounds for appeal.
Court rejects arguments on condonation
One of the main issues raised by the Regulator was whether the court could excuse the department for filing its appeal late under POPIA.
The Regulator relied on earlier cases, including Mohlomi v Minister of Defence and Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd, and argued that the department’s appeal had lapsed because it was not served within the required time.
Judge Mooki rejected this argument. The judge found that the cases cited by the Regulator did not actually address the issue before the court and so did not support the Regulator’s position. Commenting on Mohlomi, Judge Mooki explained that the case was not about the High Court’s inherent power to excuse non-compliance with statutory rules.
The court also looked at the Supreme Court of Appeal’s decision in Toyota South Africa Motors (Pty) Ltd v Commissioner for the South African Revenue Service, which involved a late appeal outside the set legal time.
Judge Mooki concluded that previous cases support the idea that courts can decide whether to excuse late filings if the law allows it.
Why the court found condonation was necessary
The court said that its power to grant condonation is implied by law. Judge Mooki pointed out that without this power, there would be no way to hear appeals brought after the 30 days set by section 97 of POPIA.
The judge said that not allowing for condonation would hurt the justice system by stopping courts from hearing cases that might deserve attention, just because the law does not specifically mention condonation.
The judgment noted that, otherwise, there would never be a situation where an appeal could be made after the 30-day deadline in section 97 of POPIA.
Dispute over personal information
The Regulator also argued that the court was wrong to decide that publishing matric results was not the same as processing "personally identifiable information". Judge Mooki disagreed with this criticism.
The judge explained that the infringement notice focused on whether the department’s way of publishing results broke POPIA by revealing students’ personal information.
The court said that the phrase "personally identifiable information" simply described the main point of disagreement and was not an attempt to create new law. Judge Mooki said the expression ‘personally identifiable information’ just summed up the basic facts in the dispute.
No prospects of success
The court then considered the legal requirements for allowing an appeal. Judge Mooki explained that Section 17(1)(a) of the Superior Courts Act says an appeal can only go ahead if there’s a real chance a different court would decide differently, or if there’s another strong reason for an appeal.
The judge stressed that this is a high bar, and anyone wanting to appeal must show a clear and sensible reason why another court would reach a different outcome.
After looking at all the Regulator’s arguments, Judge Mooki concluded, “For the reasons above, I am not convinced that the appeal has any real chance of success.” The court also found the application did not raise any strong reasons that would justify an appeal.
Final order
The court dismissed the application for leave to appeal. It also ordered the Information Regulator to pay the costs of the application, including the higher costs for senior counsel and standard costs for other counsel.
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