Exam (elaborations)
EDA3058 EXAM PACK 2022
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- University Of South Africa (Unisa)
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EDA3058EXAM PACK
,MY MEMO COMPILED FROM QUESTION PAPERS
QUESTION 2
EDUCATION LAW
2.1 WHAT IS MEANT BY THE EDUCATORS DUTY OF CARE? (3)
-Educators have an obligation to their professional status as educator,
and i.t.o their original duties (b/c they act in loco parentis ) to provide care and supervision for the children
placed in their care.
2.2 WHY AND UNDER WHICH CIRCUMSTANCES IS THE REASONABLE PERSON REQUIREMENT USED? (4)
-The reasonable person requirement is used as a measure when an educator is suspected of negligence.
-It is used to determine whether (s)he could reasonably have foreseen the possibility of injury to the child,
or to the protection of the child, and whether (s)he could have taken steps to prevent it.
-In other words, did (s)he do what would be expected of a reasonable educator under the same
circumstances?
2.3 WHICH FACTORS DETERMINE THE DEGREE OF THE EDUCATORS DUTY OF CARE? (5)
-The legal principle of diligens paterfamilias: diligens (good) and paterfamilias (father of the house or
family)
-in other words, it is expected of the educator to be as caring as a concerned parent.
-This means that an educator is expected to take care of children in the same way as a caring parent.
-Other factors that the courts consider are the age and maturity of learners, the nature of the activity and
the environment.
DISCUSS THE FIDUCIARY RELATIONSHIP BETWEEN THE SCHOOL AND ITS GOVERNING BODY? (8)
-Section 16(2) of the Schools Act states that the governing body stands in a position of trust towards the
school,
which means that there is a relationship of trust between the governing body and the school (fiduciary
relationship).
-To be in a position of trust means that the governing body must:
• act in good faith
• carry out its duties and functions in the best interests of the school
• not disclose confidential information that might harm the school
• not engage in any unlawful conduct
• not compete with the school's interests and activities
,-The principal did not act within the limits of her legal authority and therefore acted ultra vires. The
principal does not have the legal right to suspend a learner.
-According to the South African Schools Act 84 of 1996, a learner may only be suspended by the governing
body and then only after the learner was granted reasonable opportunity to make representations to the
governing body in relation to such suspension.
-Then, within 7 school days of suspension, the governing body must conduct disciplinary proceedings
against the learner.
-If these disciplinary proceedings are not conducted within 7 school days, the governing body must obtain
permission from the HoD for continuation of the suspension.
-Should it be decided during the disciplinary proceedings that the learner should be expelled,
the governing body may extend the suspension for a period not longer than 14 days, pending the decision
of the HoD whether or not to expel the learner.
-The principal did not give the learner the opportunity to put her side of the case and therefore did not
adhere to the audi alteram partem principle.
-Chapter 2 of the Constitution (s 15) & section 7 of the Schools Act 84 of 1996 also protect religious
freedom.
-No learner may be discriminated against on the grounds of his/her religious convictions, conscience,
opinion or belief.
-No. no right is absolute. The limitation clause, section 36 provides that all rights can be limited.
-Section 29(2) does not only provide for the right to education in the language of one’s choice but also for
limiting this right to situations where it is reasonable practicable.
-The primary purpose of the South African Schools Act 84 of 1996 (promulgated in Nov that year), is to
make provision for a uniform system for organizing, governing & funding of schools.
-The Act contains a number of important provisions which form the basis of the management and
governance of schools.
-One of the main legal consequences of the Schools Act is that it makes provision for democratic school
governance.
, -In loco parentis means: “acting in the place of a parent who has entrusted the custody & control of
his/her child to an educator during normal intramural/extramural school activities.
-Educators who act in loco parentis have an obligation to take good care of the children placed in their
charge.
-Duty of care involves both the psychological well-being of a learner and the physical welfare of a
learner.
-Negligence can be defined as failure to exercise the necessary degree of care for the safety & well-being of
others.
-Negligence may occur as a result of failure to act when there is a duty to act – or it may occur as a result of
acting in an improper manner.
-The “reasonable person” (bonus paterfamilias) test is used to determine negligence.
-A defendant is negligent if a reasonable person in his/her position would have acted differently & the
damage was reasonably foreseeable & preventable.
-Since educators are regarded as experts/professionals, the reasonable measure of expertise will be added
to the standard expected of the general reasonable person.
-Thus the standard against which an educator’s conduct would be measured is that of a reasonable
educator.
-To test whether an educator was negligent 2 criteria must be applied, namely:
• Foreseeability (could an injury have been anticipated & prevented)
• & preventability (failed to take such steps)
-In this case the court may find the principal guilty of negligence b/c he failed to foresee or recognize a
potentially dangerous situation:
he also ignored the possibility that an injury could occur.
-Secondly, he did not take reasonable steps to prevent an injury from occurring. (Warning is not
sufficient/no railings/no staff on duty)
-He did not do what would be expected of a reasonable educator/principal under the same circumstances.
-He should have checked/arranged for personnel to be on playground duty, or have the necessary safety
rails been put up.
-It could be determined that it was possible for the principal to foresee & prevent the harm/death of the 6-
year-old Mpho.
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