Minister of Basic Education (National Department of Education) and Another v Information Regulator of South Africa and Others (Appeal) (148459/24) [2025] ZAGPPHC 1390 (12 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 1390 | Noteup | LawCite sino index ## Minister of Basic Education (National Department of Education) and Another v Information Regulator of South Africa and Others (Appeal) (148459/24) [2025] ZAGPPHC 1390 (12 December 2025) Minister of Basic Education (National Department of Education) and Another v Information Regulator of South Africa and Others (Appeal) (148459/24) [2025] ZAGPPHC 1390 (12 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1390.html sino date 12 December 2025 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA, GAUTENG DIVISION, PRETORIA Case 148459/24 Reportable: No Of interest to other Judges: No Revised: No SIGNATURE Date: 12 December 2025 In the matter between: THE MINISTER OF BASIC EDUCATION (NATIONAL DEPARTMENT OF EDUCATION) 1 st Appellant THE DIRECTOR-GENERAL (IN THE DEPARTMENT OF BASIC EDUCATION) 2 nd Appellant and THE INFORMATION REGULATOR OF SOUTH AFRICA 1 st Respondent THE SOUTH AFRICAN NATIONAL EDITORS' FORUM 2 nd Respondent ARENA HOLDINGS (PTY) LTD 3 rd Respondent AFRIFORUM NPC 4 th Respondent JUDGEMENT MOOKI J (MOLOPA-SETHOSA J and MORGAN AJ concurring) 1          The Minister of Basic Education ("the Minister") and the Director-General in the Department of Basic Education ("the Director-General"), together "the Department", appeal an enforcement notice ("the Notice") issued by the Information Regulator of South Africa ("the Regulator"). The appeal is made pursuant to section 97 (1) read with section 98 of the Protection of Personal Information Act 4 of 2013 ("the Act" or "POPIA"). 2          Two other related applications are also before this Court. First, an application by the Regulator to enforce compliance with the Notice (matter 150121/2024 - enforcement proceedings). Second, an application by the Department to review the issuance of the Notice (matter 008645/2025 - review proceedings). The parties to these applications agreed, at the commencement of the proceedings before Court that the enforcement and the review proceedings, respectively, would fall away should the appeal succeed. We then address the appeal in the first instance. 3          The Regulator contends that the appeal is not competent because it was not made within the 30 days specified in section 97(1) of the Act. The Department seeks condonation for the late service of the appeal. I first address the application for condonation. 4          The appeal was due by 18 December 2024, being 30 days from when the Department received the Report and its annexures. The Department uploaded the appeal papers to Court Online on 13 December 2024. The Department did not serve the appeal on the Regulator within 30 days. The Regulator received the appeal on 9 January 2024, being 6 days outside the 30-day period. 5          The Department explained the delay as follows. The State Attorney, on 18 December 2018, arranged with the messenger for the urgent service of the papers. The State Attorney called the Sheriff, stating that the papers had to be served that day. The State Attorney checked whether the papers were served on 20 December 2024. The papers were not in the pigeonhole for urgent matters. He could not find the sheriff or the messenger. 6          The State Attorney spoke with a different messenger when he did not see the papers on 23 December 2024. This messenger did not know about the papers. The State Attorney could not contact the sheriff. He then prepared a new bundle. 7          The Regulator issued an infringement notice on 23 December 2024, requiring the Department to pay a fine for non-compliance with the Notice. 8          The State Attorney drove to the Sheriff’s office on 24 December 2024. The Sheriff was absent. The State Attorney then phoned an emergency number that was displayed on the door of the offices of the Sheriff, and the stand-by sheriff arrived. It later transpired that the appeal documents were first taken to the State Attorney's office, Johannesburg. The appeal was eventually served on the Regulator on 9 January 2025. 9          The Department says there was a 6-day delay in serving the papers, which occurred during the holiday season. The Office of the State Attorney was operating on a skeleton staff at that time. The Department contends that the delay is negligible and that the Regulator was not prejudiced. 10        The Regulator took issue with the Department's explanation. The Regulator contends that the Court cannot condone non-compliance with section 97(1) of the Act, and that the appeal is to be dismissed. The Regulator also contended that both the Department and the office of the State Attorney could have done more to ensure that the appeal was made within the stipulated period. 11        The Regulator says that the Department did not identify the source of the Court's power to condone non-compliance with the period for appealing an enforcement notice, and that there is no law in terms of which the Court could grant condonation. In addition, the Regulator says that the Department could not invoke Rule 27 of the Uniform Rules of Court, which requires the showing of "good cause" for a court to condone non-compliance with the uniform rules of court. 12        The Regulator contended that the legislature, where it intends condonation for non-compliance with a statutory provision, makes express provision for such condonation in a statute. No provision is made in relation to non-compliance with section 97(1) of the Act. The Legislature was aware that an organ of state may delay in instituting an appeal. There is no reason to suspect that the Legislature simply forgot to empower a court to condone non-compliance. The Legislature deliberately wanted the right to appeal to lapse for non-compliance with the 30-day period and that, contrary to the stance by the Department, the power to condone cannot be sourced from sections 34 and 173 of the Constitution. 13        The Department and the State Attorney were aware that the appeal had to be instituted within 30 days; "they ought to have taken the necessary steps to ensure that the statutory appeal was instituted within the prescribed time." The Regulator contends that the Department failed to give a full and reasonable explanation for the failure to take necessary steps, such as ensuring that the appeal was not only collected from the office of the State Attorney, but that it was delivered to the relevant Sheriff, with the Sheriff being duly instructed to serve the appeal on the Regulator on time. The Department and the State Attorney "ought to have done much more than what is narrated ..." because they "were fully aware that the statutory appeal had to be instituted on time and that failure thereof would result in the appeal lapsing...". There is no explanation for why no official from the State Attorney's office was assigned to ensure that the appeal was served on the Regulator as prescribed. 14        The Regulator says that it is prejudiced by the Department's failure to have appealed on time. The prejudice is that the Regulator issued an infringement notice. The Regulator further says that the delay obliged the Regulator to engage in unnecessary costly litigation. Whether a case is made out for the grant of condonation 15        The Regulator submits that the Department, in seeking condonation, is required to identify the source of this court's power to grant that relief. It was submitted on behalf of the Regulator that there is no legislation or rule that empowers the Court to condone non-compliance with section 97(1) of the Act. Accordingly, this Court cannot consider the appeal. 16        The Regulator submits that "all appeals known in our law are characterised by prescribed time frames and deadlines within which they must be instituted, failing which they lapse ." [1] The Regulator submits that the decisions in Liberal Party [2] and Pepper Bay Fishing [3] restate the long-established principle that where the Legislature does not vest a creature of statute with the power to condone non-compliance with peremptory provisions, such a power does not exist. These authorities are not on point. Courts are not "creatures of statute," as in relation to the making of decisions in the Liberal Party and Pepper Bay Fishing cases. These cases do not support the stance advanced by the Regulator. 17        The decision in Compcare Wellness Medical Scheme v Registrar of Medical Schemes and Others [4] equally does not support the stance by the Regulator. The Supreme Court of Appeal determined in Compcare Wellness Medical Scheme that section 23(1) of the relevant statute did not grant the Registrar a discretion. The Supreme Court of Appeal arrived at this determination after considering, among others, the purpose of the statute. The court in Compcare Wellness Medical Scheme did not decide the issue with reference only to whether there was a provision in the statute for what the Registrar intended to do. The court made its determination after analysing the relevant legal instruments. More fundamentally, the court in Compcare Wellness Medical Scheme was not determining the issue with reference to the authority of a court. The court in Compcare Wellness Medical Scheme was concerned with the powers of the Registrar of Medical Schemes, a statutory body. 18        The Regulator says that the Court can only exercise powers vested in the Court by law, and that there is no power granted to the Court to condone non-compliance with Section 97(1) of the Act. The power to condone had to have been expressly mentioned in section 97(1). The absence of such a reference means that the Parliament did not intend a court to condone non-compliance with the 30-day requirement. 19        The Regulator mischaracterises the law on condonation. The standard for whether a court would grant condonation was set some twenty-five years ago. [5] That is because "the standard for considering an application for condonation is the interests of justice." [6] "Whether it is in the interests of justice to grant condonation depends on the facts and circumstances of each case. Factors that are relevant to this enquiry include but are not limited to the nature of the relief sought, the extent and cause of the delay, the effect of the delay on the administration of justice and other litigants, the reasonableness of the explanation for the delay, the importance of the issue to be raised in the intended appeal and the prospects of success.'' [7] 20        The Constitutional Court in Van Wyk did not determine the application for condonation with reference to whether a particular rule or a particular provision in a statute permitted granting condonation. The Constitutional Court determined the application with reference to whether it was in the interests of justice for that court to grant condonation. That is the law regarding applications for condonation. A litigant need not first establish a particular power under which a court may grant condonation. A litigant needs only to satisfy a court that it is in the interests of justice for a court to grant condonation. 21        A further statement on the law on the subject is found in the matter of Steenkamp v Edcon Limited , [8] where the Constitutional Court said the following: The principle is firmly established in our law that where time limits are set, whether statutory or in terms of the rules of court, a court has an inherent discretion to grant condonation where the interests of justice demand it and where the reasons for non-compliance with the time limits have been explained to the satisfaction of the court. 22        The fundamental point made by the Constitutional Court in Steenkamp is that a court, where a litigant did not comply with time limits in a statute, has inherent discretion to grant condonation where the interests of justice so demand. 23        The stance advocated by the Regulator will result in perverse outcomes. For example, in an instance where a meteor were to strike, leading to an inability to serve the Regulator within 30 days of an enforcement notice, such an occurrence, on the view taken by the Regulator, would be irrelevant because all that matters is that there would have been no service within 30 days of the enforcement notice. This would render section 97(1) of the Act a law of the Medes and Persians: Inflexible. Implacable. Admitting no construction. That would, undoubtedly, be contrary to the role of courts in a constitutional State, where a court of law will be made to deny recourse notwithstanding the obvious impediment to a claimant being able to institute process. This is why the relevant standard for condonation is whether it is in the interests of justice for a court to grant that relief. 24        The Department caused the appeal to be uploaded to Court Online well within the 30 days. The appeal was served on the Regulator on 9 January 2022. This was 6 days after the expiry of the 30 days in section 97(1). The Department says that the delay is not excessive. I agree. 25        The Department, through the office of the State Attorney, had put measures in place to ensure that the appeal was served on the Regulator. The State Attorney explained how it came about that service was not effected before expiry of the 30 days. The Regulator says both the Department and the office of the State Attorney "should have done more" to ensure that the Regulator received the process within the period. I find nothing fundamentally objectionable to the explanation for how the Regulator was served 6 days after expiry of the statutory period. The office of the State Attorney was working using skeleton staff, during the holiday season. 26        I might mention that it is contradictory of the Regulator to say that the Department and the State Attorney, in explaining the delay, ought to have done more to ensure that service was effected within the 30 days. There would be no need for an explanation because, in the view taken by the Regulator, the sword fell once the thirty days elapsed. No explanation is necessary because a court has no power to condone non-compliance, and an appeal lapses automatically. 27        It will be a perversion of justice to refuse condonation in the present circumstances. The Regulator admits that the appeal is important to the Department. The subject matter of the appeal is important to both parties. The Department has shown prospects of success in its contention that there is no infringement of the Act because it is not possible to identify a particular learner based merely on the examination number allocated to that learner. I therefore condone the late filing of the appeal. The merits of the appeal 28        The Regulator issued the Notice pursuant to section 95 of the Act. The Notice is dated 6 November 2024. The Notice followed the Regulator having conducted an own initiative assessment in terms of section 89(1) of the Act. The Notice records that "the responsible party has interfered with the protection of personal information of the data subjects as follows: A breach of the conditions for the lawful processing of personal information." The Department says that the tenor of the Notice is to prevent the annual publication of matric examination results in local newspapers. 29        The Notice further stipulates the following: 29.1    The DBE failed to obtain consent of the learners who are above eighteen (18) years or that of the parent/guardian for learners below eighteen (18) years who sat for the 2023 National Senior Certificate examinations, as per its own admission, and proceeded to publish the personal information of such learners in the newspapers. 29.2    The DBE failed to demonstrate that processing of personal information of learners through publication of their matric results in the newspapers was necessary for the purpose of concluding a contract or performing an obligation in terms of the contract. 29.3    The DBE failed to demonstrate that the documents referenced by the DBE impose a legal obligation on the DBE to process personal information of learners by publishing the matric results in the newspaper. 29.4    The Director-General failed to demonstrate how and what legitimate interest of learners would be protected by the publication of matric results in newspapers, given that publication in newspapers is not the only method available to learners to obtain their National Senior Certificate examination results. 29.5    The Director-General failed to demonstrate that processing the learners' personal information by publishing their results in the newspapers was necessary to perform a legal obligation imposed on the Department. Furthermore, the DBE failed to demonstrate the legal obligation upon which it relied to justify the publication of the matric results in any newspaper. 29.6    The DBE failed to demonstrate how it would pursue its legitimate interests by publishing learners' matric results in newspapers, or what those interests are. The Regulator continued that it was essential to state that the interests of the DBE or the media cannot override the interests or fundamental rights and freedoms of the learners. 30        The Regulator, having set out, according to it, the infringement by the Department, "ordered" the Department as follows: THE RESPONSIBLE PARTY IS HEREBY ORDERED TO: Take the following specified steps: 1.         In respect of the breach of section 11 (1) of POPIA: In relation to the 2024 matric examination results: 1.1       The DBE must provide the Regulator, within thirty-one (31) days of receipt of this report, with an undertaking that it will not publish results of the 2024 matriculants in the newspapers; and 1.2       The DBE must not publish the results for the 2024 matriculants in newspapers and must make these results available to learners using methods that are compliant with PO PIA, such as each learner obtaining their results from the school or using the secure SMS platform of the DBE, which enables each learner to access their results confidentially. In relation to the 2025 matric examination results 1.3       The DBE must obtain the consent of learners who are above the age of eighteen (18) years or the parents/guardians of those below the age of eighteen (18) years who will write the matric examination in 2025 before publishing their results in newspapers. 1.4       In complying with the above requirement of consent, as contained in section 11(1)(a) of POPIA, and considering the large number of learners who write the matric examination every year, the DBE must develop a system which will enable it to obtain the consent of learners or their parents/guardians before the publication of their matric results in newspapers. 1.5       The DBE should design the system mentioned above in a manner that will ensure that consent given by the learners, or their parent/guardian, complies with the definition of consent in section 1 of POPIA, namely that it is a voluntary, specific and informed expression of will in terms of which they consent to the publication of their matric results in newspapers. In other words, the system should be designed so that it is clear to learners or their parents/guardians what they are consenting to. The system should also make provision for the withdrawal of consent. 1.6       DBE must provide the Regulator within ninety (90) days of receipt of this report, with an undertaking that it will design a system to obtain the consent of the learners or their parents/guardians before publishing the results of the twenty-five matriculants. 1.7       The DBE must afford the Regulator the opportunity to verify that the system is compliant with POPIA prior to deploying it. 1.8       Further to the above, the DBE must devise another method to assign examination numbers to learners. If it decides to retain the current numbering method, it must ensure that the results are published in newspapers so that learners from the same school cannot identify other learners or their results. 1.9       In the event that the DBE devices another method of assigning examination numbers to the learners, it must ensure that such method complies with the provisions of POPIA.  It was further provided that the DBE must provide the Regulator with proof of having devised such a method within 90 days of receipt of this report. Such proof should clearly specify the method used to assign the examination numbers in question, ensuring that the learner is not identifiable. The DBE should not publish the results of the 2025 matriculants if the recommendations mentioned above have not been complied with. 31        The Notice set out deadlines when the Department had to take specified measures. First, the Department were to provide the Regulator, within 31 days of receipt of the report, with an undertaking that the Department will not publish the results of the 2024 matriculants in newspapers; second, the Department were to provide the Regulator, within 90 days of receipt of the report, with an undertaking that the Department will design a system that will be used to obtain consent of learners or their parents/guardians before publishing the results of the 2025 matriculants. 32        The Regulator advised the Department of the Department's right to appeal the Notice, and that such appeal had to be made within 30 days of receipt of the Notice as provided for in section 97(1) of the Act. The Department was further informed that a party that fails to comply with an enforcement notice is guilty of an offence and is liable, upon conviction, to a fine or to imprisonment for a period not exceeding 10 years, or to both such fine and such imprisonment. 33        The Department did not perform as stipulated in the Notice. The Regulator then brought the enforcement proceedings on an urgent basis. The court (Tolmay J) struck the matter from the roll for lack of urgency on 8 January 2025. 34        The Department issued its notice of motion in the appeal on 13 December 2024. The Department sought relief that the Notice be set aside and that the Regulator be ordered to pay costs. 35        The Department appeals on four grounds: 35.1    That it is not competent for the Regulator to issue an enforcement notice about the future publication of matric examination results. 35.2    That the Regulator is bound by a court order that settled the lawfulness of the publication of matric examination results consisting of only examination numbers and corresponding results in local newspapers. 35.3   That the publication is not publication of information that relates to an identifiable person. 35.4    That the publication complies with the processing limitations set out in section 11 (l)(b) - (f) of the Act. 36        The Department advanced several contentions in support of its application, including the following. That it had been the practice under the previous constitutional dispensation to publish the full name, school and results of each matriculant in the local newspapers, and that the practice changed under the current constitutional dispensation because of privacy considerations. The change was to publish results in local newspapers in a way that did not identify a specific matriculant, by publishing the candidate's examination number alongside the candidate's results. The name of a candidate and that of a candidate's school are no longer published. 37        The Department contends that the manner of publication is such that a particular learner is not identifiable, and that the examination results do not convey any information which, by direct or indirect linkages, may be connected to a specific learner. The Department also contends that it has not received complaints or allegations of harm or injury arising from the publication of matric examination results in local newspapers. 38        The Department says that the published information does not constitute "personal information" for purposes of the Act. That is because such information is not related to an identifiable learner, and no reader of a local newspaper can reasonably be expected to be able to identify a particular learner from the published information. 39        The Department further pointed out that the word "processing" in the Act pertains to an operation concerning "personal information". The publication of results by the Department does not constitute "processing" for purposes of the Act. The Department accepts that the examination number assigned to a learner constitutes a "unique identifier" of a data subject (in this instance, the learners) for purposes of the Act. The Department pointed out that the definition of "personal information" does not refer to a "unique identifier". The result, according to the Department, is that "personal information", for purposes of how the Department publishes its results, is not to be construed with reference to whether the publication of results entails a "unique identifier". The Department elaborated on its grounds of appeal as detailed below. 40        As to the first ground of appeal:- The Department contends that the purpose of an enforcement notice is to provide a remedy for past or current interference by a responsible party with the protection of a specific data subject's personal information. To this end, such a notice may only be served where the Regulator is satisfied that a responsible party "interfered or is interfering" with the protection of the personal information of a data subject. The Department cited section 95(1), read with section 73, in support of this construction. 41        As to the second ground of appeal. The Department contended that the High Court (Millar J) made an order on 18 January 2022, directing the Department to publish matric results in the manner now used. 42        The 18 January 2022 order came about as follows. The Act became fully operational on 1 July 2021. The matriculation results for the 2021 examinations were due for publication in January 2022. An issue arose, given the coming into effect of the Act, as to whether results would be published as before, namely, the full names of the matriculant, the school, and the results. The Department held the view that the Act did not allow such publication, and that results would not be published as before. A matriculant then brought proceedings to oblige the Department to publish results in newspapers. The matriculant contended that she would be unable to fetch results from her school, as she would be a great distance from the school when results were released to schools. 43        The Regulator was cited as a respondent in the application. The parties settled the dispute. The Regulator was consulted on the terms of the settlement and did not object. The settlement was that the results would be published in the media, but only the examination number and the outcome associated with that examination number would be revealed. The Department contends that the Regulator consented to the court order. 44        The Department further contends that the court order was not limited to the 2021 matric examination results and that it has not been challenged to date. The Department, relying on this order, made the matric examination results available to local newspapers in 2021, 2022, and 2023. The Department considers that publication of results in an anonymised format in local newspapers is a settled matter, being res judicata or based on the doctrine of issue estoppel. 45        As to the third ground of appeal. The Department contends that it does not publish "personal information" as defined in the Act. This is because what is published is not information that relates to an identifiable person. The Department referenced the definition of "personal information" in section 1 of the Act. The Department says that the word "identifiable" is not defined in the Act, so this is a matter for interpretation by this Court. 46        The Department pointed out that "identifiable" is an objective signifying that a person is capable of recognition. The Department contends that no matriculant is capable of recognition, given how results are published. In addition, no member of the general public or any reasonable reader of a newspaper would reasonably or likely have the means to link an examination number to a particular matriculant. 47 The Department disputed, as fanciful, the Regulator's contention that learners in the same school can identify other learners and their results because examination numbers are allocated sequentially. The Department says that learners lack general knowledge that examination numbers are allocated sequentially. That is because the allocation of examination numbers to a particular learner is confidential. The Department says that the possibility of a learner remembering or caring to remember who sat before or after a learner in the examination venue, as contended for by the Regulator, "is so far-fetched and implausible that it can be disregarded as insignificant." 48        As to the fourth ground of appeal. The Department denied that it infringed section 11 of the Act. The case for the Regulator 49        The Regulator carried out an own-initiative assessment to determine whether the publication of the matric examination results contravened the Act. The assessment was not premised on a prior complaint. The Regulator is competent to assess on its own accord, pursuant to section 89(1) of the Act. The absence of a complaint did not render publication by the Department lawful. 50        The assessment report revealed that the mode of publication of the examination results contravened the Act. The report is deemed an enforcement notice. It is unlawful to publish examination results where such publication violates the right to privacy of the matriculants. The way results are published makes it possible for learners to be identified. "It is that identification of learners, which violates their right to privacy, and the POPIA was promulgated to protect that right. The enforcement notice in issue seeks to give effect to the right to privacy and to protect learners from being identified through their examination numbers." 51        The Regulator denied that the mode of publication did not allow for the identification of a specific matriculant. That was because results are published using examination numbers issued sequentially and that matriculants sit in examination rooms in the same order as their examination numbers. That rendered it possible for matriculants to be able to determine the examination numbers of their fellow matriculants "by simply looking at the sequence of examination numbers published in the local newspapers." The manner of publication is not sufficiently anonymous because learners remain identifiable. 52        The publication of matric examination results does not protect the legitimate interests of learners. Learners who, for one reason or another, may not be in the vicinity of their school when results are released can obtain their results through the Department's secure SMS platform. Furthermore, the effect of a few learners being away from their schools when results are released does not justify publishing results in newspapers. 53        The Regulator denied that an enforcement notice under section 95(1) cannot be issued to prevent violations in the future. That is because the Act cannot be construed as precluding the Regulator from obliging the taking of steps to prevent the violation of a data subject's right to privacy in the future. 54        The Regulator denied that the order by Millar J authorised how the Department may publish results. The order was granted by agreement of the parties, without the court determining the lawfulness of the release of the matric results. The order was not sought to be applied in perpetuity: it was limited to the publication of the 2021 results. The Regulator denied that the manner of publication of the results is res judicata. 55        The Regulator contends that the manner of publishing results amounts to the processing of personal information of the relevant matriculants in violation of their right to privacy insofar as the matriculants are identifiable. The position would have been different if examination numbers were not issued sequentially and if learners did not sit sequentially according to their examination numbers. 56        The Regulator maintains that it provided a factual basis for its contention that matriculants are identifiable through their examination numbers as contended for. The Regulator also maintained that publication of results constitutes publication of personal information relating to an identifiable person. That is because a matriculant can be identified using a matriculant's examination number as published in a newspaper. 57        The Regulator denied that the Department complied with section 11 (1)(b) - (f) of the Act, which requires rendering the publication lawful. None of the provisions justifies the manner in which the Department published results. The publication violated the right to privacy of the learners because learners are identifiable. There is no evidence that the moral and legal convictions favour the publication of results in local newspapers. Such convictions cannot, in any event, override the Constitution and the Act enacted to protect the right to privacy. 58        The Regulator denied that it was required to have first made a referral of the report to the Enforcement Committee before issuing the Notice. The Act does not require the Regulator to refer its own-initiative assessment report to the Enforcement Committee, and such a report is not equivalent to an enforcement notice contemplated in section 95(1) of the Act. The case for the Fourth Respondent 59        The fourth respondent aligned itself with the appeal by the Department "in all respects." The fourth respondent relied on its answering affidavit filed in the urgent application under case number 2024 -150121. Analysis 60        The Regulator says that the relief sought in the statutory appeal is of the utmost importance to the Department. The parties raised several issues in the appeal. I consider that the appeal is to be determined with reference to whether the manner of publication of results constitutes publication of "personally identifiable information". If not, then cadit quaestio , and the appeal must succeed. 61        The Department contends that there is no publication of personally identifiable information because "No learner is identifiable or at risk of identification by any members (sic) of the general public; (or by the reasonable man) solely by the examination number of that learner." The Regulator says that the sequentially assigned examination numbers enable learners in the same school to identify other learners and their results. 62        The Regulator does not, in the Report, say how precisely the sequential allocation of numbers permits learners from a particular school to identify their fellow learners based on how results are published. This is detailed for the first time in the answering affidavit: namely, that examination numbers are issued sequentially per school, and matriculants sit sequentially in examination rooms according to those numbers. The Regulator says all these allow matriculants to be able to determine the examination numbers of their fellow matriculants "by simply looking at the sequence of examination numbers published in the local newspapers." 63        Section 1 of the Act defines " personal information " as information " relating to an identifiable " person. The Department would be in breach of the Act should the mode of publication of results constitute the processing of information that relates to an identifiable person. 64        A learner is "identifiable", according to the Regulator, because a learner who sat next to another learner during examinations would know the results of such a learner with reference to the sequence of examination numbers. Put differently, a learner will have regard to his examination number, recall the other student who sat next to him during the examination, and then know the identity of such a student precisely because examination numbers are assigned sequentially. According to the Regulator, this renders learners identifiable to one another. 65        "Personally identifiable information" means information which, without any particular diligence by a person considering such information, permits, without more, the ability to identify a particular person. 66        I agree with the Department that the Regulator's contention is fanciful. Its approach is akin to a poorly constructed thought experiment. No empirical evidence supports the position. The Regulator's stance does not reflect events in the real world. It would be a very unusual learner who, having prepared for examinations, having spent weeks sitting for various papers, and having spent weeks awaiting results, would care to recall who sat next to the learner during examinations, work out from the sequence of examination numbers, and then have thoughts about how that other learner performed in the examinations. 67        The Act is concerned with preserving privacy interests. It is unnecessary to consider the various other issues raised in the application. That is because I hold that the manner of publication of the results does not constitute the processing  of  personally  identifiable  information.  The  question  of infringement of the right to privacy does not arise. The other issues raised in the application are incidental to whether the students' right to privacy was infringed. It is therefore unnecessary to address those other issues, given our holding. 68        The appeal must succeed. The enforcement proceedings and the review proceedings thus fall away. 69        In the result the following order is made: (1)       The appeal is upheld. (2)       The enforcement notice dated 6 November 2024, issued by the First Respondent against the First Appellant is set aside. (3)       The infringement notice dated 23 December 2024, issued by the First Respondent against the First Appellant is set aside. (4)       Each party in matter number 150121/2024 is to bear its own costs in those proceedings. (5)       Each party in matter number 008645/2025 is to bear its own costs in those proceedings. (6)       The First Respondent is ordered to pay the costs of the appeal incurred by the appellants, including the costs of senior counsel on scale C and the costs of junior counsel on Scale B. (7)       The First Respondent is ordered to pay the costs of the appeal incurred by the Fourth Respondent, including the costs of senior counsel, on scale C. O MOOKI JUDGE OF THE HIGH COURT GAUTENG DIVISION PRETORIA I agree: L M MOLOPA-SETHOSA JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA I agree: M MORGAN JUDGE (Acting) OF THE HIGH COURT GAUTENG DIVISION, PRETORIA Counsel for the appellants:                      M Oosthuizen SC (with S van Helsdingen) Instructed by:                                           The State Attorney, Pretoria (Mr KM Khaphola) Counsel for the first respondent:              K Tsatsawane SC (with T Moretlwe) Instructed by:                                            Diale Mogashoa Attorneys Counsel for the fourth respondent:           Q Pelser SC Instructed by:                                            Hurter Spies Inc. Date heard:              28 October 2025 Date of judgment:    12 December 2025 [1] Emphasis in the original [2] Liberal Party v Electoral Commission 2004 (8) BCLR 810 (CC) [3] Minister of Environmental Affairs and Tourism & Others v Pepper Bay Fishing (Pty) Ltd; Minister of Environmental Affairs and Tourism & Others v Smith 2004 (1) SA 308 (SCA), at para 31 [4] 2021 (1) SA 15 (SCA) [5] Brummer v Gorfil Brothers Investments (Pty) Ltd and Others [2000] ZACC 3 ; 2000 (2) SA 837 (CC), at para 3. [6] Head of Department, Department of Education, Limpopo Province v Settlers Agricultural High School and Others 2003 (11) BCLR 1212 (CC), at para 11; S v Mercer [2003] ZACC 22 ; 2004 (2) SA 598 (CC), at para 4 [7] Van Wyk v Unitas Hospital and Another , 2008 (2) SA 4 72 (CC), para 20 [8] Steenkamp v Edcon Limited [2019] ZACC 17 , para 26 sino noindex make_database footer start