Information Regulator challenges High Court's decision on matric results publication

The Information Regulator of South Africa has filed an application to appeal a Pretoria High Court’s decision that allowed the Department of Basic Education (DBE) to publish matric results in newspapers using examination numbers. 

The Regulator approached the Supreme Court of Appeal after the High Court dismissed its argument on December 12, 2025, that this would set a dangerous precedent for handling personal information under the Protection of Personal Information Act (POPIA)

Spokesperson Nomzamo Zondi said the Regulator stands firm in its position that the importance of judicial processes could help illuminate certain aspects of POPIA, particularly in relation to the obligations of responsible parties, such as DBE, in complying with the Regulator’s orders and in protecting personal information that they hold about data subjects. 

The fight began when the Information Regulator launched an investigation into how the DBE handles learners’ personal information during matric exams. 

In November 2024, the Regulator issued an Enforcement Notice to the department, ordering it to stop publishing results in newspapers or other media, claiming it broke POPIA by making learners identifiable through examination numbers. 

The Regulator argued that even without names, these numbers could link back to individuals with extra knowledge, from school records, posing a privacy risk. 

It has also slapped the DBE with a R5 million fine through an Infringement Notice for not complying.

POPIA, which came into full force in 2021, aims to protect personal data like names, IDs, or exam numbers from being shared without consent or good reason.

However, the DBE pushed back, saying exam numbers alone are not personal information under POPIA, as they cannot identify someone without other details.

This led to a court battle, with the Regulator seeking an interdict to block publication, while the DBE appealed the notices.

Zondi said the appeal makes the Enforcement Notice and Infringement Notices enforceable, which continues to prohibit the DBE from publishing matric results in newspapers. 

She said this forces the department to comply with the Enforcement Notice, unless it obtains an order granting it leave to execute the judgment pending the final determination of the appeal. 

“The Regulator has sent correspondence to DBE, outlining the impact of the application for leave to appeal,” read the statement issued on Wednesday morning. 

Asked if the department is aware of this, DBE spokesperson Lukhanyo Vangqa confirmed, adding that the department is studying the papers and consulting with counsel. 

In the court papers, the Regulator argued that the High Court has introduced a new concept of “personally identifiable information” not in POPIA, and failed to properly consider their points on privacy risks.

“The court has introduced a phrase and a definition that are foreign to POPIA. It further said this definition seeks to introduce a new class of information, which is not provided for in the POPIA, together with a criterion not founded in POPIA,” read the papers. 

The Regulator said the introduction of the phrase and a definition amounts to making law as opposed to interpreting the law, which the court does not have law-making powers.

It added that the court has not provided any authority for the creation of the phrase and its definition, the source of its power to do so, and the basis of its applicability to the protection of personal information in terms of the POPIA.

The papers further stated that the High Court failed to give adequate reasons for its conclusion that “the appeal is to be determined with reference to whether the manner of publication of results constitutes publication of personally identifiable information”.

The Regulator also added that the court has not identified the source of its power to condone non-compliance with Section 97 of the POPIA, and it is desirable that a higher court resolves this issue.

“The question of whether the court has power to condone non-compliance with POPIA will arise again between the Information Regulator and other parties in the future, and it is in the interests of justice that this issue be resolved by a higher court,” said the Regulator, adding that there is, in general, a need for regulatory certainty as to the interpretation and application of the various provisions of the POPIA which were in dispute between the parties, which the court did not engage with in its judgment.

“An appeal would resolve all the issues in dispute between the parties, which this court did not entertain, such as the DBE’s defences based on Section 11 of the POPIA, which defences are going to arise in other matters in the future. It is in the interests of justice and in the public interest to have those issues resolved by a high court,” stated the Regulator.

manyane.manyane@inl.co.za