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Chapter 11-16 Summary - Educational Law
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This is a summarized version of chapters 11-16 of the 2nd edition of the EDLHODM textbook, which can be used to study for section B of the exam.
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ALEXA STEWARTINTRODUCTION TO SOUTH AFRICAN EDUCATIONAL LAW
Chapter 11: Education law sources regulating classroom management
Law is rules of conduct that are accepted as binding in society and must be obeyed by society at
large, enforced by the state for regulating affairs of society in a just & equitable manner.
Law must maintain and restore legal balance in society.
Education law regulates education in the same way in which the law regulates society. Every
action in the classroom has a legal basis.
- Components of the Constitution, statute law, common law, & case law that create an
education system and regulate multilateral interaction of individuals, groups, independent
bodies & official authorities within that system.
Policy compliments educational law sources, it is not law and is not mandatory.
- Policy adopted in form of White Paper which results in legislation, or
- Policy flowing from enabling legislation
- Policy either precedes or follows on legislation
- Not legislation because adopted by executive & not by legislature or organs of the state.
- Policy cannot override, amend or be in conflict with laws.
- Possible for policy to become a law.
Ignorance of the law:
- Maximum ignorance of the law is no excuse, originated from Roman law.
- Ignorance of the law can be pleaded in criminal but not civil cases
- Ignorance of facts is a mistake with regard to definitional or constituting elements of the
crime
- Ignorance of the law is whether the person knows that a certain act is unlawful.
- Ignorance of the law can never be a defence.
Educators should be informed of legal provisions regulating school education.
Education law:
Facilitates and regulates behaviour
Creates harmony and order
Determines power and duties of functionaries
Defines parameters within which education activities are performed
Protects rights of individuals and groups involved in education
Prescribes requirements for provision, governance and financing of education
EDUCATION LAW SOURCES
The Constitution
Is a separate source of law, over and above other legislation? Constitution is supreme law which
has a direct influence on all law.
ALEXA STEWART
,Constitution brought system of parliamentary sovereignty to and end and ushered in system of
constitutional supremacy.
- Local sphere of government has no direct responsibility for provision of schooling in its
area because Constitution determines “education” is a functional area which is shared by
national and provincial spheres of government.
Legislation
- Is law made by an organ of state vested with legislative authority?
- Parliament will pass legislation of national nature and on other specific matters
- Other legislative authorities include legislatures of provinces and municipal councils.
- Original legislation derives from the complete and comprehensive legislative capacity of an
elected legislative body (Acts of Parliament seen in Schools Act)
- Subordinate legislation adds the “flesh” to the original legislation (regulations), it is passed
in terms of original legislations (also called “empowering legislation”). It must not be in
conflict with provisions of original legislation.
Common Law
Legal rules which were not originally written down (uncodified) and not enacted by legislature
(non-statutory), over time accepted as underlying basic laws of society. Courts can judge cases
according to common law.
Common law can be altered by legislation. Some common law principles have been incorporated
into legislation.
Case Law
Decisions of courts contained in law reports are important part of administration of justice.
Reports describe the course that is take by most NB court cases, gives reasons for each judgement.
Stare decisis principle (judicial precedent) based on effects that previous court judgements have
on later judgements. Meaning decisions of high/supreme court are binding on lower courts like
magistrates.
- When applying this the judge looks at reasons for judgement (ratio decidendi) – this
consists of legal principles that court applies to material facts to reach a decision.
LEGAL SUBJECT
Law applies only to legal subjects. It is any ”person” recognised in law. Persona iuris, a person in
the eyes of the law and as such the bearer of rights and duties, and is vested with a special status
in law, a legal status.
2 classes of legal subjects:
Natural persons (all human beings)
Juristic persons or entities other than human beings upon which the law bestows a legal
personality (A School)
Material law determines the content and meaning of legal rules, while procedural law relates to
manner in which material law is enforced. Material law is divided into public law and private law.
Public law regulates the organisation of the state, the relationship between different organs of the
state, relationship between state & individual.
ALEXA STEWART
, - Its authoritative nature with organ of state always in position of authority and acting in
public interest
- Education law falls mainly in sphere of public law because of involvement of state and its
authoritative position in education.
Constitutional law involves the working and relationships of the most authoritative organs of
state. Constitution forms the kingpin of our constitutional law because it is the supreme law of
the land.
Administrative law is the sum total of legal rules that grant people or institutions in authority the
power to take action; prescribe the procedure to be followed when taking such action; and ensure
such action is within boundaries of the law.
- It also provides control over such action
- Legal discipline that regulates actions, powers and organisation of the state administration.
Criminal law focuses on transgressions that violate the interest of the community
Private law orders the various rights and obligations of private persons (natural persons and
juristic persons). A private law relationship is a horizontal relationship between persons and
bodies who agree to this relationship on equal terms, to further their individual or private
interests.
- Law of delict is most NB private law discipline for classroom manager
- A delict is an unlawful, culpable (intentional or negligent) act (or omission) committed by a
person, which infringes the rights of another or causes him or her harm.
Chapter 12: Constitutional provisions regulating classroom management
Supremacy of the constitution
Constitution brought to an end a government system of parliamentary sovereignty and ushered in
a system of constitutional supremacy.
All legislation must be compared to the Constitution to ensure it doesn’t contract it. Legislation in
conflict with the constitution is declared invalid.
Constitution sets out spirit and underlying values of the constitutional system to be incorporated
in education law and policy. Most NB of values for classroom manager are: Human dignity,
equality, human rights & freedoms, non-racialism and non-sexism.
BILL OF RIGHTS
Gives essence of social values upon which new political, social, and economic order is constructed.
Forms cornerstone of education dispensation & is NB to educators as classroom managers.
Equality
- Everyone is equal before the law & has the right to equal protection and benefit of the law
- Implies full and equal enjoyment of all rights and freedoms.
- To promote the achievement of equality, legislative and other measure may be taken
which are designed to protect or advance persons, or categories of persons who have been
disadvantaged by unfair discrimination
- State may not unfairly discriminate against anyone on grounds of:
ALEXA STEWART
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