EDLHODM/202/1/2014

Tutorial letter 202/1/2014

The Educator as Leader Manager and
Administrator

Department of
Educational Leadership and
Management
This tutorial letter contains important
information about your module.




















EDLHODM
Semester 1


2


CONTENTS
Page no

1 SECTION B: INTRODUCTION TO SOUTH AFRICAN EDUCATION LAW...3

2 EXAMINATION PAPER: SECTION B: INTRODUCTION TO SOUTH AFRICAN EDUCATION LAW...6

3 MEMORANDUM OF ACTIVITIES INCLUDED IN THE STUDY GUIDE........8


4 A FINAL WORD.....18
































EDLHODM/202



3

1. SECTION B: INTRODUCTION TO SOUTH AFRICAN EDUCATION
LAW

Dear Student

Please note that this tutorial letter relates to the only study guide for EDLHODM.
The purpose of this tutorial letter is to provide feedback on assignments 01, question 2,
Section B: Introduction to South African Education Law, to demarcate the field of
study for the examination and to provide the format of the exam paper for Section B:
Introduction to South African Education Law. The memorandum of activities
included in your study guide Section B: Introduction to South African Education Law
is also included.

1.1 FEEDBACK ON ASSIGNMENT 01, QUESTION 2

Question 2.1 Analyse the scenario and explain under what circumstances either
Team Rebones coach or JD Smit Secondary School can be liable for the accident
by applying five (5) elements of delictual liability.

Please note: This question expects you to discuss and explain the 5 Requirements
for delictual liability page 153 of the study guide. This requirements must be
explained in the context of the question and be based on the case study.

A delict is defined as an act which infringes upon the right of another. or ... a
wrongful and culpable act which has a harmful consequence. Mr X will be
delictually liable if his action complies with the following requirements for delictual
liability:

(1) To constitute a delict, one person (eg the educator) must have caused harm or
damage to another by his or her action or conduct. The conduct must be a
voluntary human action and may be either a positive action (ie doing something)
or an omission (ie failure to do something).

(2) The act (conduct) which causes harm must be wrongful, that is, it must be legally
reprehensible or unreasonable in terms of the legal convictions of the
community. To test for unlawfulness, the boni mores principle is applied. The
question here is whether the harm caused was unjustified in the circumstances.
In the absence of wrongfulness (eg where there was no intention to harm) a
defendant may not be held liable.



4

(3) The act must be the result of fault in the form of intent (dolus) or negligence
(culpa). Fault refers to the blameworthy attitude or conduct of someone who has
acted wrongfully.

(4) There is a causal link between the conduct of the perpetrator and the harm
suffered by the victim. In general, it should be shown that the person's injury did
result from the actions of the person charged with negligence. In other words,
there must be a clear causal relationship between the act and the injury. A
person cannot be liable if he or she has not caused any damage.

(5) A delict is a wrongful and culpable act which has a harmful consequence.
Damages (causing harm) in the form of patrimonial (material) loss or
nonpatrimonial loss must be present. There must be a connection between the
negligent conduct and the injury (physical or mental). To receive an award for
damages, a plaintiff must have suffered an injury as a result of the defendant's
negligent conduct. The plaintiff must prove that some damage occurred.
Although the injury or damage does not need to be substantial for an award to
be ordered, the injury must be real rather than imagined. The courts are
generally reluctant to award damages where there is not some form of injury.



Educators may be found guilty of negligence if they
fail to provide proper supervision
fail to aid the injured or ill
permit learners to play unsafe games
fail to provide adequate instructions
take unreasonable risks
fail to organise field trips properly
All these elements must be taken into consideration when answering the
question. Ask questions such as, who was wrong, who is liable and why?
Support your answer with the requirements for delictual liability as stated
above.
EDLHODM/202



5

Question 2.2 Comment on the possibility of "contributory fault" on the part of the
learner.
In this case negligence is one form of fault. A negligent educator might not be
held liable if a learner contributed to the injury by his or her own negligence. In other
words, if a learner fails to exercise the degree of care usually expected of a person
of that age, knowledge and experience the court may decide that owing to the
learner's contributory negligence/fault, the educator is not solely liable for damages
resulting from an injury by his or her act. Contributory negligence could be important
in situations involving older learners, especially if such learners understand the full
implications of their actions. On the other hand, young children cannot be expected
to fully comprehend the consequences of some of their actions and behavior.
Comments:
There have already been a number of cases involving sport in South African legal
history. The principles of the law of delict apply to sport as they would to any other
scenario in society. This would relate to 3 possible areas, namely, personal injury,
violence and spectator injury

The law of delict, is a section of private law. This branch of law deals with civil
wrongs against another person that cause the injured party to go to court to seek
compensation from the wrongdoer for damages.

If an educator creates a potentially dangerous situation, and then fails to remove the
danger, which then results in loss or damage being caused to another, he/she will
be held liable for such loss or damage. A legal duty rests on the educator to
prevent the potential danger from becoming a real danger.
A delict has 5 key elements that must be present. These are:
(a) An act;
(b) Wrongfulness;
(c) Fault;
(d) Damage/Loss
(e) Causation.

Each of these elements must be present before a person can be held liable in
delict.



6

In participating voluntarily in a game, the victim therefore consents to the possibility
of injury and limits the possibility of pursuing a delictual claim. Thus, contributory
negligence involves some form of fault (in the form of negligence) on the part of the
injured person. The injured person failed to exercise the required standard of care
for his or her own safety. Contributory negligence comes into play when conduct on
the part of the injured person contributes to his or her injuries. When the court has
to determine the damages, it will reduce the damages apportioned to the plaintiff in
proportion to his or her own fault (e.g. contribution to his or her own injuries)

In conclusion, the law does not expect educators to anticipate every accident, but
it does expect them to behave as reasonable people. It is easy to anticipate the
possible occurrence of an accident involving educators and children if a group of
children is badly supervised, if a minibus that transports children is not maintained
or if dangerous equipment is not properly stored. Only in the case of a truly
unexpected event will it be possible to assert that it was not reasonable to foresee
harm. To what extent an educator can reasonably be expected to foresee dangers
and anticipate risks will depend on the facts of the case and on the circumstances
(e.g. the nature of the school activity, the location of the school or the age of the
learners).

2. EXAMINATION PAPER, SECTION B: INTRODUCTION TO SOUTH
AFRICAN EDUCATION LAW

The 2014 examination paper consists of TWO sections. Section A contains
questions on Introduction to Classroom Management and Section B contains
questions on the second part of the study guide (Introduction to South
African Education Law). You should start preparing for the examination in good
time. Draw up a revision schedule which gives you sufficient time to revise all your
work.


2.1 The format

Section B: Introduction to South African Education Law consists of TWO
Questions for 50 marks.

2.2 Types of questions

You can expect the following types of questions in the examination papers:

Mark reading sheet: True or False questions (20 marks)

You will be given a statement and you must indicated if it is TRUE (1) or FALSE (2)

Scenarios/case studies which require you to interpret and apply theory to a practical
situation (30 marks)

EDLHODM/202



7

You will be given a case study / scenario and questions asked. You must apply the
law and support your answers by referring to the applicable legislation.

2.3 What we expect of you in the examination

The examination paper must be answered within two hours, which means that you
need to be thoroughly prepared. In the examination you will need to be able to:

define and explain education and legal concepts and principles

identify and explain the purpose of important legislation

discuss and interpret the relevant sections of the South African Schools Act

discuss and apply common law principles to practical situations (eg the rules of
natural justice, nemo iudex in sua causa and stare decisis principle)

apply theory to practice

illustrate your answers by referring to examples from education practice

2.4 Reading and interpreting questions

Make sure that you interpret the questions correctly. Analyse the questions carefully
before you start writing. Look for key words and phrases and establish exactly what
the question entails and what is required of you. If you are asked to name /
identify three criteria with which the teaching profession must comply, you merely
have to give the criteria in point form. If, however, you are asked to discuss /
explain three criteria with which the teaching profession must comply you need to
give a detailed description and explanation of each one. Do not waste time by giving
irrelevant or redundant information.

2.5 Presentation

Your writing must be legible and your answers must be expressed in clear and
logical terms. Underline key words and phrases. Remember to number your
answers correctly and clearly, and please complete the cover page of the
examination book.

2.6 Allocation of time

The examination is two (2) hours long. Divide your time accordingly. The mark
allocation will give you an idea of how much time you should spend on each
question.


8



3. MEMORUNDUM OF ACTIVITIES INCLUDED IN THE STUDY
GUIDE: INTRODUCTION TO SOUTH AFRICAN EDUCATION LAW

Do the following activities to prepare for your examination.


ACTIVITY 1




What are the differences between public law and private law?
(Give your answer in point form)

Public law relationship
aimed at public interest
orders the relationship between the State and the individual
relationship
denotes a relationship of authority


Private law relationship
furthers individual or private interests
orders the respective rights and obligations of private persons
horizontal relationship
relationship agreed to on equal terms



ACTIVITY 2




TO which of the following scenarios is public law or private
law applicable respectively?

1 An educator assaults a learner or infringes a
learners dignity.

2 Two learners are involved in a fight during break time
and both suffer physical injuries as a result, or two
learners insult each other.

Public law because it is a vertical, unequal relationship with the educator in a
position of authority (representing the education authority) towards the learner. The
learner is subordinate to the educator
EDLHODM/202



9


3 Private law: orders the respective rights and obligations of private persons and
therefore a horizontal relationship



ACTIVITY 3




Why do you think it is important that educators have
knowledge of the Bill of Rights?

The Bill of Rights contains fundamental rights and freedoms that underpin everything
an educator does.

Every school must develop and implement a code of conduct within the framework
of the Bill of Rights.

Educators should know their own rights and freedoms and those of the learners so
that they can make valid and legally correct decisions.

You should not discuss individual rights here


ACTIVITY 4




Distinguish between differentiation, discrimination and unfair
discrimination by giving examples from situations in the
classroom that would constitute differentiation, discrimination
and unfair discrimination respectively.



Differentiation (treating people differently) occurs all the time. Learners with poor
eyesight, for example, may be placed in the front of the classroom.

Discrimination is when you differentiate between people in a way that infringes
upon their right to human dignity e.g. refusing a learner admission to a school on
the basis of her colour

Unfair discrimination cannot be justified e.g. discrimination in education on the
basis of disability, sex and race may be some of the most glaring examples of
unfair discrimination.


10

should exercise authority with compassion. An educator avoids any form of
humiliation and refrains from any form of child abuse (be it physical or psychological
abuse). An educator should promote gender equality. An educator should not have
sexual relations with a learner or sexually harass (physical or otherwise) any
learner. The educator who respects the rights of learners should try to create a
relationship with learners that are build on trust and care. In other words, in the
classroom, learners should feel confident and free to seek the educator's moral
advice and guidance. The learner must feel assured that the educator can be
trusted with confidential information and that his or her privacy will be protected.


ACTIVITY 5




Give three practical examples of situations where the learner's
right to dignity can be infringed in the school situation.

In a situation where a learner with AIDS applies for admission to a school.
In a situation where there is reasonable suspicion that a learner have drugs or a
weapon in his/her possession and has to be searched.
Add at least two more examples.



ACTIVITY 6




Study section 15 of the Constitution and write down the three
requirements that must be met before religious observations
in schools will be regarded as lawful.

Section 15 stipulates the following:

(1) Everyone has the right to freedom of conscience, religion, thought, belief and
opinion.

(2) Religious observances may be conducted at state or state-aided institutions,
provided that;

(a) those observances follow rules made by the appropriate public
authorities

(b) they are conducted on an equitable basis

(c) attendance of such is free and voluntary

EDLHODM/202



11

An important case in this regard is Antonie v Governing Body, Settlers High School
2002 (4) SA 739 (C). This case deals with the legal question of whether a 15-year-
old learner, who embraced the principles of the Rastafarian religion, could be
suspended from public school by the governing body for growing her hair in
dreadlocks and wearing a cap. The school alleged that the learner acted in an
unbecoming manner, in noncompliance with the school's code of conduct and that
her conduct created disruption and uncertainty which could escalate. She was thus
charged with serious misconduct. The girl, on the other hand, alleged that her
appearance was neat and tidy at all times and that she was merely expressing her
religious convictions. The school's code of conduct required that learners' hair had
to be neat and tidy and did not prohibit the growing of dreadlocks and the wearing of
a cap. The suspension was set aside because adhering to religious dress codes did
not for the court amount to serious misconduct under the school's code of conduct.
The court emphasised that the focus should be on positive discipline as prescribed
by the ministerial guidelines contained in the Guidelines for the consideration of
governing bodies in adopting a Code of Conduct for Learners. The court reinforced
the idea that every decision made in schools should be in accordance with the
values that underpin the Constitution (section 1) as well as the democratic values of
equality, human dignity and freedom.


ACTIVITY 7




Study the scenario below and then answer the question that
follows:

Doreen, a learner at Brilliant High School, one day failed to
complete her homework. When the educator reprimanded her,
she argued with the educator and stated that the educator's
instructions were not clear. The educator told her that she was
tired of learners doing whatever they wanted and told Doreen to
go and stand outside the classroom.

Doreen's father argued that the educator's actions were
unlawful. Do you agree with him? (You must concentrate on
Doreen's constitutional right to education and the limitation
clause.)

The Bill of Rights contain rights and freedoms that are protected and guaranteed to
every person of the country, including childrens right to education (Section 29(1)



12

Principals and educators have a legal duty to uphold these rights in the school
context; if they do not, they could face legal action. However, it is also important to
remember that rights are not absolute. Under section 36 of the Constitution, rights
may be limited by law, provided that the reasons for imposing a limitation are
reasonable, justifiable and necessary. Principals and educators are, therefore,
permitted to place a restriction on learners' rights while the learners are at school,
provided this restriction is for sound reasons.

ACTIVITY 8




Can you think of at least one other situation where an
educator will have to take cognisance of a learner's right to
just administrative action

That would be for instance, disciplining a learner who neglected to do his/her
homework.



ACTIVITY 9




Study the following extract from a report of the Human Rights
Watch and identify the rights and freedoms of the learner(s) that
have been infringed. Explain why you think that the specific
rights or freedoms have been infringed.

A student told Human Rights Watch how a teacher, who later
raped her, would make sexually explicit and degrading
comments to girls in his classes about their bodies. MC
described the teachers classroom demeanour to Human Rights
Watch as follows: "He would make all the girls sit in the front
row, so that he could look at them, and the boys in the back. ...
Youd have to wear long pants because he would make bad
comments, like 'nice legs' or 'Can we go out?'. He signed my
diary: 'I love you. You go pupil.'


Human dignity (s10). The educator is infringing the learners right to have
his/her dignity respected and protected. The Constitution, education legislation
and common law (the in loco parentis principle) place on educators a positive
duty to protect learners dignity.

EDLHODM/202



13

Freedom and security of the person (s12). The learner has the right not to be
treated in a cruel, inhuman or degrading way. By making sexually explicit and
degrading comments the educator is infringing this right.

Equality (s9). One could argue that the educator is discriminating against the
girls on the basis of their gender.

Children (s28). Several of the learners children rights have been violated. The
educator is obliged to provide the learners with appropriate alternative care and
to protect the learners against abuse and degradation. In this case, the educator
failed to do this.


ACTIVITY 10




You have been asked to compile practical guidelines on what
every educator has to know about HIV/AIDS for classroom
management purposes.

The educator, as a classroom manager, should keep the following in mind:

He/she may not divulge any information about the medical condition of a learner with
HIV/AIDS. Such information must be kept confidential.
The educator should ensure that the infection control measures and adaptations are
Always applied and carried out when the need arises in the classroom situation,
regardless of the known or unknown HIV status of individuals concerned.
Educators may not have sexual relations with learners. Unacceptable practices such
as asking for sexual favours for a pass mark must be stopped.
Educators may not unfairly discriminate, directly or indirectly, against a learner with
HIV/AIDS. Educators should be alert to unfair accusations against any person
suspected of having HIV/AIDS.
Educators should ensure that they are trained in first aid and that they are aware of
where the first-aid kits and appropriate cleaning equipment are kept.
The educator should ensure that he/she has a pair of latex or household rubber gloves
available in the class.
Educators should ensure that learners adhere to the provisions regarding the
unacceptability of behaviour (indicated in the code of conduct) that may increase the
risk of HIV transmission.


ACTIVITY 11




YOU BE THE JUDGE!!
Study the unreported case of Mazwi v Simon's Town High School
and evaluate the case by considering the South African Schools


14

Act and by applying the ultra vires principle.

An 18-year-old schoolboy in Grade 11 was expelled by his
school's governing body in February 1996 on the grounds of his
smoking, insolent behaviour and using a bus ticket illegally. This
followed a letter written to his mother by the governing body in
November of the previous year asking her to remove her son
from the school because of "insolent behaviour". His mother took
the issue to the Supreme Court, claiming that her son had been
unfairly expelled and that his constitutional rights had been
violated. She said she had not received the letter written in
November and her son had returned to school at the beginning of
the year.

However, the boy was sent home on the first day of the new term
and expelled after a special hearing held by the governing body.
The school's principal denied that the expulsion was unfair or
that the boy had been discriminated against (Reader's Digest
1997:207).

As stated in the study guide, Judge Jeanette Traverso and Judge WG Thring found
that the expulsion order was invalid, as a valid expulsion could follow only after a
valid suspension and neither the governing body nor the principal had complied with
the required procedure. The principal had not properly suspended the boy when he
was sent home; nor had he informed the boy's mother in writing of the governing
body's decision and the reasons for the expulsion. You should have answered this
question by referring to section 9 of the South African Schools Act which deals with
suspension and expulsion. A learner may only be suspended after a fair hearing. A
learner may be suspended as a correctional measure for a period of no longer than
one week, or, in consultation with the HoD, pending a decision whether or not the
learner is to be expelled by the HoD. Since the learner was expelled by the
governing body and without the permission of the HoD, the governing body
performed an ultra vires act. Furthermore, if a learner who is subject to compulsory
attendance in terms of section 3(1) is expelled from a public school, the HoD must
make an alternative arrangement for his/her placement at another suitable public
school. Since such an arrangement was not made, the governing body violated the
learners right to education.

ACTIVITY 12




You want to take part in a strike. What consequences will your
participation in the strike have for you as a classroom manager?
How will you balance these consequences with your right to
strike?
EDLHODM/202



15

An educators right to strike may be limited by the rights of the child. According to
the Bill of Rights, the child has the right to education, which would require
professional behaviour on the part of the educator in a professional relationship with
the learner. Section 28(2) also provides that A childs best interests are of
paramount importance in every matter concerning the child. If an educator strikes,
this would deny the child his/her right to education and this could therefore not be
regarded as in the childs best interest.



ACTIVITY 13




You are a senior educator and are asked to guide some junior or
inexperienced educators with regard to legally sound classroom
management. You want to warn them against actions that will
constitute misconduct. Make a list of actions you would suggest
they avoid in managing their classrooms and explain to them
what actions could be taken against them should they be found
guilty of misconduct.

An educator commits misconduct if he/ she

(a) fails to comply with or contravenes the Act or any other statute, regulation or
legal obligation relating to education and the employment relationship;

(b) wilfully or negligently mismanages the finances of the school;

(c) without permission possesses or wrongfully uses the property of the school;

(d) wilfully, intentionally or negligently damages or causes loss to the property of
the school;

(e) in the course of duty endangers the lives of himself or herself or others by
disregarding set safety rules or regulations;

(f) unjustifiably prejudices the administration, discipline or efficiency of the
school;

(g) misuses his or her position in the school to promote or to prejudice the
interests of any person;

(h) accepts any compensation in cash or otherwise from a member of the public


16

or another employee for performing his or her duties without written approval
from the employer;

(i) fails to carry out a lawful order or routine instruction without just or reasonable
cause;

(j) absents himself or herself from work without a valid reason or permission;

(k) unfairly discriminates against other persons on the basis of race, gender,
disability, sex, pregnancy, marital status, ethnic and social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, culture, language, birth,
family responsibility, HIV status, political opinion or other grounds prohibited by
the Constitution;

(l) performs poorly or inadequately for reasons other than incapacity;

(m) without the written approval of the employer, performs work for compensation
for another person or organisation either during or outside working hours;

(n) without prior permission of the employer accepts or demands in respect of the
carrying out of or the failure to carry out the educator's duties, any commission,
fee, pecuniary or other reward to which the educator is not entitled by virtue of
the educator's office, or fails to report to the employer the offer of any such
commission, fee or reward;

(o) without authorisation, sleeps on duty;

(q) while on duty, is under the influence of an intoxicating, illegal, unauthorised or
stupefying substance, including alcohol;

(r) while on duty, conducts himself or herself in an improper, disgraceful or
unacceptable manner;

(s) assaults, or attempts to or threatens to assault, another employee or another
person;

(t) incites other personnel to unprocedural and unlawful conduct;

(u) displays disrespect towards others in the workplace or demonstrates abusive or
insolent behaviour;
(v) intimidates or victimises fellow employees, learners or students;

(w) prevents other employees from exercising their rights to freely associate with
trade unions in terms of any labour legislation;

EDLHODM/202



17

(x) operates any money-lending scheme for employees for his or her own benefit
during working hours or from the premises of the educational institution or
office where he or she is employed;

(y) carries or keeps firearms or other dangerous weapons on State premises,
without the written authorisation of the employer;

(x) refuses to obey security regulations;

(z) gives false statements or evidence in the execution of his or her duties.

If a finding is made that the educator committed misconduct the employer may, in
accordance with the disciplinary code and procedures, impose a sanction of

(a) counselling;

(b) a verbal warning;

(c) a written warning;

(d) a final written warning;

(e) a fine not exceeding one month's salary;

(f) suspension without pay for a period not exceeding three months;

(g) demotion;

(h) a combination of the sanctions referred to in paragraphs (a) to (f); or

(i) dismissal, if the nature or extent of the misconduct warrants dismissal" (RSA
1998b, sec18(3)



ACTIVITY 14




Give as many examples as you can of situations in the school
where the rules of natural justice have to be applied to learners.

Examples:
When a learner violates a school rule and is disciplined.
When a learner is suspended.
When a learner is expelled.



18



ACTIVITY 15




Give as many examples as you can of situations in the school
where the rules of natural justice have to be applied to
educators.

An example is an educator being accused of misconduct or negligence. Add at least
two more examples.


ACTIVITY 16




Explain how a court would apply the stare decisis principle to
decide a case in which an educator who administered corporal
punishment is on trial.


The judge took previous judgments of high courts on similar cases (cases which dealt
with corporal punishment such as the Williams case and the Christian Education for
South Africa case) into consideration when he/she passed judgment. He/she applied
the precedent set by high court judgments to the case in dispute. He/she referred to the
ratio decidendi (the reason for the judgment) of the cases. The ratio decidendi of a case
consists of legal principles that the court applied to the material facts in order to reach a
decision. The judge looked at the judgment of the majority because the ratio decidendi
is found in the judgment in which the majority of judges based their judgment on the
same reasons.

4. A Final Word

If you want to tackle the examination paper with confidence, make sure you are
thoroughly prepared. Revise the work according to a study programme. Start preparing
for the examination now.

I wish you all the best in the examination. Please do not hesitate to contact us if you
require any help with your studies.

Dr Rebotile Machaisa