- The Information Regulator has applied for leave to appeal a Pretoria High Court ruling allowing newspapers to publish matric results using exam numbers.
- The Regulator argues that the court introduced a concept not found in POPIA and wrongly condoned the Department of Basic Education’s late appeal.
- The matter raises broader questions about privacy, regulatory certainty, and whether courts may condone non-compliance with POPIA time limits.
The Information Regulator has formally applied for leave to appeal to the Supreme Court of Appeal, seeking to overturn a Pretoria High Court judgment that cleared the publication of matric results in newspapers using examination numbers.
In its notice, the Regulator challenges the judgment delivered on 12 December 2025 by Judge O Mooki, with Judge LM Molopa Sethosa and Acting Judge M Morgan concurring. That judgment upheld an appeal by the Department of Basic Education and set aside enforcement and infringement notices issued by the Regulator in November and December 2024.
The High Court found that examination numbers do not constitute personal information under the Protection of Personal Information Act (POPIA) and that publishing results in this format does not breach learners’ privacy.
The Regulator now contends that the court committed multiple errors of law and that there are reasonable prospects of success on appeal.
Challenge to condonation under POPIA
A central plank of the proposed appeal concerns the High Court’s decision to condone the Department’s late filing of its appeal against the Regulator’s enforcement notice.
According to the Regulator, POPIA does not provide for condonation of non-compliance with Section 97, which prescribes time limits for appeals. It argues that the court lacked the power to condone the late appeal and failed to identify any lawful source for such power.
“The issue before the court was whether the court had the power to condone non-compliance with Section 97 of POPIA,” the Regulator states in its notice. It contends that the court instead applied an “interests of justice” test without first establishing that it had jurisdiction to do so.
The Regulator further argues that the court wrongly relied on Constitutional Court decisions such as Brummer v Gorfil Brothers Investments and Van Wyk v Unitas Hospital, which dealt with non-compliance with court rules rather than statutory time limits.
“In both Brummer and Van Wyk, the court was not dealing with non-compliance with a statutory provision,” the notice states, adding that POPIA stands on a different footing.
Dispute over “personally identifiable information”
The Regulator also aims at the High Court’s reasoning on privacy and identifiability, arguing that the court introduced a concept foreign to POPIA.
In its judgment, the High Court confined the dispute to whether the manner of publication constituted the processing of what it termed “personally identifiable information”. The Regulator argues that this phrase does not appear anywhere in POPIA and was not relied upon by any of the parties.
“The court has introduced a phrase and a definition which is foreign to POPIA,” the Regulator states. It contends that by doing so, the court effectively created a new legal category not contemplated by the statute.
The notice further argues that the court defined this concept without any factual or legal basis and without allowing the parties to make submissions on its meaning or relevance. According to the Regulator, this amounted to a violation of the right to a fair hearing.
Privacy, identifiability, and learners
On the substance of POPIA, the Regulator maintains that examination numbers and results constitute personal information and that the Act is not concerned with how much effort is required to identify a data subject.
“The prohibition is against the processing of personal information other than as permitted by POPIA,” the notice states, adding that the High Court wrongly focused on whether identification requires “particular diligence”.
The Regulator argues that learners are, in practice, identifiable through the way results are published and that the court failed to adequately engage with this reality or properly address the alleged infringement of the constitutional right to privacy.
It further contends that the High Court rejected its submissions on identifiability without giving adequate reasons.
Broader public interest issues
Beyond the immediate dispute over matric results, the Regulator says the appeal raises questions of wider importance. These include whether courts have the power to condone non-compliance with POPIA, how personal information should be interpreted and protected, and how regulatory enforcement under the Act should function.
“There is a need for regulatory certainty as to the interpretation and application of POPIA,” the Regulator states, arguing that these issues are likely to arise again in future disputes.
It also points out that several defences raised by the Department, including reliance on Section 11 of POPIA, were not addressed by the High Court and remain unresolved.
The Regulator submits that it is in the interests of justice and the public interest for a higher court to finally determine these questions.
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