Common law is one of many sources of the law of education in South Africa namely the

Constitution, Legislation, Customary law, Case Law as well as Common law. (Oosthuizen
et al 2009:127) “states that the common law remains relevant in current South African
private law and the courts have a duty to develop common law principles to promote the
spirit purport and objects of the Bill of Rights”. In this case scenario law of delict
(negligence) is taken against former teacher Mr Tony Stark and the school know as
Avengers Primary where the failure to exercise the necessary degree of care for the safety
and well-being of others. Mr Stark acts were of Law of Delict “negligence” which resulted in
learner Steve Rogers falling from the broken chair, sustain injuries of bruises and fractured
hand. The purpose of this assignment essay is to understand what and how the legal
principles of-Law of Delict (Negligence) entail within the relevant law. Further argue and
critical analyse how the principle applies to the scenario, provide with substantive
examples of negligence. Lastly the essay will conclude on any in sight that have been
gained.

“Common Law is made up of permissible rules which were not originally written down, but
which have over time turn out to be accepted as the underlying basic law of society. The
law is adapted from the Roman-Dutch and England Laws”. Court of law are still applying
these uncodified laws, meaning that courts can critic cases according to doctrines and
general rules and norms as well as behavioural norms which are not written down in
statute. “Clauses 39(2) and 39(3) of the Statute acknowledges the importance of common
law and it must be taken into consideration when legislation is interpreted (Oosthuzein et
al. 2009:107)”. The sources of law but vary from legislation because it is not enacted by
Parliament. The are many principles of common law that are used to interpret the
constitutional provision dealing with the exercise of public law, however for the purpose of
this essay in terms of common law will only look at the few ones that are relevant to
Educational Law: namely Ultra Vires, Parents as Primary Educators, ‘In loco parentis’,
Reasonableness, Negligence*.

The ultra vires doctrine is a common law principle (Oosthuzein et al. 2009:109) translated
as a means beyond legal authority. The term becomes a broad criterion for all the
requirements, this doctrine concerned for validity of an administrative acts or managerial.

Parents as Primary Educator, within this theory parents are taken as the primary educators
who has parental power to do so, but whom does not have necessary skills. In terms of
common law parents have the rights to dictate the schooling and general education of their
children. However, the teachers were given an absolute right of control to fulfil the role of
‘paterfamiliases. Teachers are now expected to provide duty of care role i.e., taking care of
a child in a same way a parent would when the learners are still under their care within the
school environment.

In loco parentis (Oosthuizen et al. 2009:125) translated this concept means ‘in place of a
parent’ however parents lack professional skills for example lack of specialised knowledge
of subjects, lack of knowledge of vocational training. The teacher is seen as ‘the parent at
the school’ they are there to give similar care and duty as parent when dealing with
learners since learners spend such long hours at school. But the parents ‘s role cannot be
excluded. The in loco parentis principle status, onuses and entitlements of the teacher as
a person ‘in loco parentis is regulated by legislation (Oosthuzein et al. 2009:127). In terms
of the principle the children at school find themselves under the authority of the teacher
who has the power to discipline the child and the duty to tend to the safety and care of the
child.

Reasonableness principle (intex) the “requirements of this principle is that administrative

action should be reasonable, it is stretched in the constitution, and a court may enquire
into the content and effects of an administrative act’. In law, the reasonable person is used
to measure the concept of negligence. The test is used in many professions to determine
whether the average person in that profession or field is likely to behave in a certain
manner (the reasonable medical practitioner, the reasonable attorney as well as the
reasonable educator). Reasonable person is the one who is seen as the average person,
who knows children and their nature, who knows the dangers children are exposed to, who
should never be negligent know the legal rules that relate within their line of work and who
is knowledgeable, competent in terms of the demands of their profession”.

Negligence* what does this principal entail? Act as a Law of Delict (negligence) principle.
“It is a failure to exercise the necessary degree of care for the safety and well-being of
others”. In many cases of negligence, the element of foreseeability has a role to play
critical to determine if standards of care provided was reasonable under the existing
circumstances. It may occur because of acting in an improper manner. According to
(Henderson. 1987) “In negligence cases duty is defined as an obligation recognized by law
requiring one person to conform to a particular standard of conduct for the exercise of care
toward another”. In case of a teacher negligence would be the standard of a reasonable
teacher, therefore when the teacher fails to provide the proper degree of care required to a
learner and the learner is found harmed consequently, charges of negligent nonfeasance
usually result. However, the law of negligence will have to be assessed in general terms,
according to the elements of negligence claims which includes the following elements:
Duty where the defendant has a duty to others including the plaintiff to exercise duty of
care. Breach where the wrongdoer/defendant breaches the duty through an act or
omission. Damages where the act or omission resulted in the plaintiff to suffer an injury
and Causation where the harm caused by defendant’s act. Therefore, if any of the
mentioned above element is missing there is no delict. The role of law of delict is to
indicate which interest are recognise by law under which circumstances interest are
protected against infringement (Rollett. 2019).

How is the principle above applying in this case scenario? Application of the law of delict
referencing with the given scenario to analyse the principle with argumentation to confirm
whether the law and the scenario have mutual connection. The teachers are professional
they are expected to demonstrate expertise that adds to the standard of a reasonable
person, in case of a teacher that would be the standard of a reasonable teacher/educator.
So, the teacher is supposed to act in duty of care approach where it is established whether
the wrongdoer owed the plaintiff a duty of care and thereafter whether there was a breach
of this duty (the negligence). If both is answered in the affirmative, negligence is said to be
present. Now looking at the scenario was the teacher able to demonstrate standards of a
reasonable person. Foresee the danger that could have occurred beyond? According to
(Oosthuizen et al, 2009) teacher knows and understand children and their nature. Within
the scenario given one would say that the harm was caused through the teachers own
negligence. Mr Stark did not act as a reasonable person and he cannot deny that he was
negligent, knowingly very well that the learners in his classroom are well known throughout
the entire school as disruptive and often gets into trouble. As professional and skilled
qualified teacher who supposedly know the legal rules that apply to their profession, he
should not have been so negligent. He was supposed to act in loco parentis “in place of a
parent’ act as a secondary parent of a learner, now that he failed to foresee and guard
against harm resulted in sustained injuries of bruises and a fractured hand caused by a
broken chair. Therefore, the teacher is accountable for failing his duty of care.

Due to the reason that the teacher was supposed to be looking after the learner during
school hours, teacher without guarding against any danger that could have risen before
the lesson start as it was the first day back at school for third term. The teacher did not
foresee or even consider the danger the children were exposed in before the learners
were back at school and when he puts that chair at the back of the class. He failed to
provide proper supervision he took unreasonable risk by putting the broken chair still
inside the classroom. teacher failed to give adequate instructions to the learners in class.
The law of delict applies in this case scenario as the principle of the law deals with
determining the circumstances in which a person is bind to bear the damage they have
caused another because the wrongdoer has obligation to compensate a person for
damage suffered (Neethling, Potgieter and Visser 2001:3:12), with that said proves that
the failing of a teacher Mr Stark has failed to act in the duty of care this results will be seen
as a negligence, then the delictual liability prevail in the scenario as delictual liability is
concerned with damages suffered by a person resulting from a wrongful act of another,
which the person is entitled to compensation in terms of our common law.

Proving the negligence using examples coming from this case scenario, the teacher was
late on the first day back at school for the term. Firstly, the teacher should not have come
in late at school for the first place, because if he were on time, he would have seen and
noticed the broken chair before and he would have made means in removing the broken
chair out of his classroom before the period starts, for example he could have organised
someone to supervise the learners at the time. (Bregman 2021) negligence occurs when
there is an inadequate standard of behaviour. The conduct is tested against what the
reasonable person in the position of the defendant would have done to avoid the
consequences. If Mr Stark had been on time for his duties, he would have foreseen and
acted in a reasonable duty of care, but due to fail of delict teacher has led the learner to be
harmed during the school hours under his care of in loco parentis within the school
environment which resulted to the learner’s injuries caused by his negligence as well as
the school must be held accountable for the negligence.

The school’s negligence here was that the school should have implemented policies with
the rule that says teachers need to be in school a day before the learners were back at
school, for the school to foresee such dangers of broken chairs within the facility remove
them a day before. Schools are the representative of the state and the community, it has
the responsibility to intervene whenever they become aware of any harm, maintaining
school’s property is essential to ensure safety within the facilities. By doing that there
would have been an act of a reasonable duty of care by the school against any harm or
dangers may risen on a school opening day. The teacher and the school are now both
facing legal actions for failing to act in a duty of care, failed to act in a reasonableness and
in an act of in loco parentis.
On the conclusion the assignment insight has given us the importance of the duty that the
teachers uphold within the school environment. Teachers have a legal duty in terms of the
common law principle the in loco parentis to ensure the learners safety in their care and
that every teacher should commit to their professional and their ethical conduct, to the
acceptance of responsibility to protect and warrant a safe school environment and the
learners rights.
Bregmans, 2021. ‘SOUTH AFRICAN LAW OF DELICT’. Bregman Moodley Attorneys, 2
August. [online]. Available at: https://www.bregmans.co.za/south-african-law-of-delict-2/.
[Accessed on 14 May 2021].

Bowal, P. Rollett. ‘In Loco Parentis’. Law Now. [online]. Available at: https://www.org/in-
loco-parentis/. [Accessed on 14 May 2021].

Henderson, D.H.1987.' Negligent Liability and the Foreseeability Factor: A Critical Issue
for School Counselors’. Journal of Counseling and Development. 66(2): 86-89.
https://onlinelibrary.wiley.com/doi/abs/10.1002/j.1556-6676.1987.tb00805.x . [Accessed on
14 May 2021].

Neethling, J. and Potgieter, J.M. 2018. ‘Wrongfulness and negligence of omission in delict-
Journal for Juridical Science. 43(1): 145-161.

Oosthuzein, I.J., Botha, P., Ross, M.C., Rossouw, J.P. and Smit, M.H. 2009. Aspects of
Educational Law. 4th edn. Pretoria:Van Schaik Publishers.

Britannica, The Editors of Encyclopaedia. "Contributory negligence". Encyclopedia

Britannica, 8 May. 2020, https://www.britannica.com/topic/contributory-negligence.
Accessed 16 May 2021.