Contents

1. Summary
   1. Facts
   2. Holding
2. Holding
3. Comment
4. Further resources
5. Decision

Summary

The Minister of Basic Education appealed an enforcement notice from the Information Regulator prohibiting publication of matric exam results with exam numbers. The High Court granted condonation for a late appeal, upheld the appeal, and set aside the notice, finding exam numbers alone do not constitute identifiable personal information.

Facts

he Minister of Basic Education and the Director-General (together, “the Department”) appealed an enforcement notice issued by the Information Regulator under section 95 of the Protection of Personal Information Act 4 of 2013 (“POPIA”). The notice prohibited the Department from publishing matriculation examination results in newspapers, even where only examination numbers (without names) were disclosed. The Regulator contended that the sequential allocation of examination numbers rendered learners identifiable to fellow learners, thus constituting “personal information” processed in breach of POPIA.

The Department filed its appeal papers on time with the court but served them on the Regulator six days late, due to administrative difficulties over the holiday period. The Regulator argued that the appeal was incompetent because section 97(1) prescribes a 30-day period for instituting an appeal, with no express provision for condonation. The Department sought condonation.

The key legal issue discussed were:

1. Whether the court has inherent power to condone non-compliance with a statutory appeal period absent express statutory authority.
2. Whether publication of examination numbers alongside results constitutes processing of “personal information” under POPIA, i.e., information relating to an identifiable person.
3. Whether the enforcement notice could lawfully prohibit future publications.

• Legal Provisions Reviewed

Holding

• The court rejected the Regulator’s argument. Relying on Steenkamp v Edcon Ltd and Constitutional Court jurisprudence, the court affirmed that courts have inherent discretion to grant condonation where the interests of justice require it, regardless of whether the statute expressly provides for condonation. The six-day delay was negligible, occurred during skeleton-staff holiday periods, and caused no prejudice. Condonation granted.
• The Regulator’s claim that learners could identify one another through sequentially allocated examination numbers was described as “fanciful” and lacking empirical support. An “identifiable” person requires objective, reasonable diligence. The court found that a learner would not realistically recall seating arrangements or match them to published sequences. Accordingly, the published information does not relate to an identifiable person and therefore does not constitute “personal information” under POPIA.