Matric results: IR argues DBE must comply with enforcement notice until set aside by appeal

JOHANNESBURG - The Information Regulator (IR) has argued that the Department of Basic Education (DBE) must comply with its enforcement orders until they are set aside by an appeal. 

The regulator last year slapped the department with a notice seeking an undertaking that it would not publish the results of the National Senior Certificate (NSC) exams for 2024. 

According to the Protection of Personal Information (POPI) Act, parties have 30 days to appeal a notice served by the regulator through a high court that has the jurisdiction to entertain the matter. 

READ: 'What makes 2024 different than 2023, 2022?' asks judge in IR's challenge of matric results publication

However, the department has conceded that while it filed the appeal, the regulator was not served. 

The parties are now battling it out before the Gauteng High Court in Pretoria where the IR seeks to compel the department not to publish the matric results.

According to section 97, subsection 1 of the POPI Act, a party that has been served with a notice by the Information Regulator has 30 days to appeal the notice to have it set aside. 

An appeal would have the legal effect of suspending the notice issued. 

The orders issued by the regulator prohibit the department from publishing or causing the publication of the matric results for 2024. 

READ: Matric results: Gwarube urges intergovernmental issues be resolved through dialogue not courts

However, without an appeal, the regulator argues that the orders are valid, as advocate Kennedy Tsatsawame explained. 

"Those orders exist in fact and they exist in law and until such time that they are set aside, the DBE must comply with them."

However, Judge Ronel Tolmay could not ignore the pending appeal and the indication by the department that it would apply for condonation after filing its papers late.
 
"I can't prejudge that and say they won’t get condonation because they may have a suitable explanation in due course."

Meanwhile, it is only when a court entertains the department’s appeal and grants it that the orders by the regulator would be suspended.