The application was filed in the Pretoria High Court following a judgment delivered on December 12.
In that judgment, the court upheld the department’s appeal against the regulator’s enforcement notice of November 6, 2024, and infringement notice of December 23, 2024, and ordered the regulator to pay the costs of the appeal.
At the centre of the dispute is whether the DBE’s practice of publishing matric results using examination numbers complies with the Protection of Personal Information Act (POPIA).
The regulator argues that examination numbers and results constitute “personal information” as defined in section 1 of POPIA and that their publication amounts to unlawful processing.
In its application, the regulator states that there is “a reasonable prospect of success on appeal” and that the court “erred in upholding the Department of Basic Education’s appeal against the information regulator’s enforcement notice”.
It further challenges the court’s finding that the manner of publication did not infringe learners’ right to privacy.
A significant aspect of the appeal concerns the court’s reliance on the concept of “personally identifiable information.”
The regulator argues that this phrase “is not defined in Section 1 of POPIA, and it is not mentioned or referred to anywhere in POPIA.”
Despite this, the court defined it as information that “permits, without more, the ability to identify a particular person”.
According to the regulator, there was “no factual and legal basis for such a definition in the context of and considering the purpose of POPIA.”
It further argues that the case was never argued on this basis and that it was “not legally competent for the court to unilaterally introduce a new concept into the matter without giving the parties an opportunity to make submissions”.
The regulator says this approach violated the right to a fair hearing and amounted to “making law as opposed to interpreting the law”, which it argues the court does not have the power to do.
Another major ground of appeal relates to the condonation of the DBE’s late appeal. The regulator contends that POPIA does not provide for condonation of non-compliance with Section 97 and that the court “does not have powers to condone non-compliance with Section 97 of the POPIA”.
It criticises the court for deciding the issue based on whether condonation was in the “interests of justice”, rather than first determining whether it had the power to grant condonation at all.
The regulator also argues that the court relied on cases such as Brummer, Van Wyk and Steenkamp, even though, in those matters, “the power of the Court to condone was not in issue” or was expressly provided for in legislation.
By contrast, it says, the court “did not say as to where, in law, it found the power to condone non-compliance with section 97 of the POPIA”.
In motivating why the appeal should be heard, the regulator says there are “compelling reasons”, including the need for clarity on whether courts may condone non-compliance with POPIA and the broader public interest in determining “the lawfulness of the publication of matric results”.
If leave to appeal is granted, the SCA will be asked to provide authoritative guidance on privacy rights, data protection, and the proper interpretation of POPIA, issues that are likely to have far-reaching implications beyond the education sector.
