By Johnathan Paoli
The Basic Education Department has instituted legal proceedings to set aside an enforcement notice, barring the publication of matric results in newspapers.
Basic Education spokesperson Elijah Mhlanga said the department filed its papers against the Information Regulator (IR) at the North Gauteng High Court on Friday.
“The appeal means that the enforcement notice has been suspended and that the department will proceed and release results to media houses who will publish in terms of the established practice in which only exam numbers are used,” Mhlanga said.
In September, the regulator accused the department of non-compliance with the Protection of Personal Information Act, specifically Section 11, stating that the department had failed to attain consent from learners.
The spokesperson said the appeal focused on four areas.
Mhlanga said an enforcement notice under Section 95(1) of the Act could only be issued and served in respect of a past or present interference with the protection of the personal information of a data subject and was reactive in nature; making the proactive barring null and void.
Secondly, he said that the IR was already bound by a court order regarding the lawfulness of the release.
Thirdly, Mhlanga confirmed that information revealed in the newspapers did not relate to an identifiable person and was, therefore, not in contravention of Section 11 of the Act.
Lastly, Mhlanga maintained that the information published was in any event compliant with the processing limitations contained in either Ssection 11(1)(b)-(f) of the legislation.
He said despite the IR’s statement that the department had failed to demonstrate compliance with the law, it was for the regulator to positively demonstrate non-compliance.
“The decision to serve the department with the enforcement notice is not in accordance with the law and involves an exercise of discretion by the IR that ought to have been exercised differently,” Mhlanga said.
This comes on the heels of AfriForum, via its legal team, Hurter Spies Attorneys, issuing a letter of demand to Basic Education Minister Siviwe Gwarube seeking clarity on the matter, and whether the department intended to file an appeal against the notice and officially declare its position in relation to the IR.
“Our client’s position is that the regulator erred in issuing the enforcement notice and our instructions are to assist our clients with urgent review proceedings in order to have the enforcement notice reviewed and set aside,” the letter read.
The results will be announced on 13 January next year.
INSIDE EDUCATION
