Thembisile Buthelezi, 21894434 Educational Leadership and Management

Part 1

a. Explain Negligence (by way of an example).

Negligence (culpa) refers to a form of fault (whether an act was performed with intent
(dolus) to cause harm or negligence) where a person is judged for a conduct of imprudence,
by not giving sufficient attention to his or her actions, due to failure to exercise the level of
care and caution (Joubert, 2017, p. 169) to others, as a result causing harm or damages. In
other words, negligence occurs when someone fails to take reasonable steps to avoid
causing harm or injury to another person, even if they did not intend to cause harm. In
simple terms, it is an omission of act. For this, negligence is a form of fault in civil law, and is
used to hold institutions, individuals, and other entities liable for the harm they cause.

In an educational context, before the courts can indict an institution, principal, department
or an educator for negligence, it has to be tested and proven whether the normal person
would have acted differently when faced with the similar situation. This is called Reasonable
Man Test, where the courts expect the sagacious teachers to care for students like a bonus
or diligens paterfamilias, where a good father would care for his family. This then lies as an
existence of Duty of Care, the legal obligation to take reasonable care, between the affected
learner and an educator or an institution. The educator must be able to foresee the intensity
of the probability of damage occurring. It has to be assessed whether the harm was
preventable or not. Would the reasonable person faced with the same situation have taken
reasonable steps to prevent the harm/damage? This can be subjected to certain
considerations such as the cause and extent of the risk, how severe the damage is and the
difficulties of preventing the occurrence of the damage (Joubert, 2017, p. 170). In the case
where the causation of harm or damage cannot be linked to the negligent conduct, the
educator or institution cannot be liable. The Law of Delicts is applied where it is proven that
the educator harmed the learner. The learner would seek compensation for damages
suffered, whether patrimonial loss or non-patrimonial loss as a result of the negligent
conduct. Patrimonial loss is claimed as financial loss such as property damage which may
holistically include learner’s belongings such as book, school uniform or medical expenses,
whereas, non-patrimonial loss are not linked to money and are claimed as result of pain and
suffering, loss of amenities, emotional shock, etc. The court is to decide the delictual liability
of the negligent act conductor’.

According to (Joubert, 2017, p. 171), the contributory fault or negligence of the learner
refers to situations where a student's own conduct contributes to their injuries or damages.
He also emphasizes the importance of considering all relevant factors when assessing
contributory fault or negligence on the part of a learner. Schools and educators should strive
to provide care, while also educating and empowering students to take responsibility for
their own safety and actions. However, he also notes that the standard of care expected of a
learner will depend on various factors, such as the learner's age, experience, and maturity.
For example, younger children may be less capable of taking reasonable care for their own
safety, and schools may have a greater responsibility to supervise, care for and protect
them.

Example of Negligence in an educational context

Negligence can occur when a school or educational institution fails to provide a safe and
secure environment for their students, resulting in harm or injury. Below is my example of
Thembisile Buthelezi, 21894434 Educational Leadership and Management

such a case. For example, if XYZ school fails to properly maintain their playground
equipment and ABC student is injured as a result of a trap to the unmaintained playground,
the school may be held liable for negligence. The school was responsible for making sure the
playground was secure and well-maintained, but they didn't meet that responsibility.

Zintle was a high school learner at Mzehleli who was injured while participating in a school-
sponsored basketball game. She had been playing basketball for several years and was
considered an experienced player. However, during the game, she slipped on a wet spot on
the court, of which her one foot got trapped inside a pot hole and fractured her ankle. Upon
investigation, it is revealed that the school had failed to properly maintain the basketball
court, study the weather and address the pot hole spot, despite being aware of the issue.
Additionally, the school did not provide adequate supervision during the game, as there was
no coach or teacher present to monitor the students.
In this case, the school may be considered negligent in its duty to provide a safe
environment for learners. The school had a duty of care to properly maintain the basketball
court and address any safety hazards, but failed to do so. Additionally, the school had a
responsibility to provide adequate supervision during the game, but failed to have a coach or
teacher present. As a result, the school may be held liable for the student's injuries and
damages, both patrimonial and non-patrimonial loss because the learner will her medical
expenses need to be covered as well as the physical [pain and suffering endured by the
learner.

b. Explain the purpose and importance of the South African Council of Educators.
According to (SACE, 2011) below are the roles and functions of SACE, with a focus on several
key areas. These areas include:
1. Regulating and protecting the teaching profession through defining requirements for
pre-service teacher training, overseeing a list of certified educators, upholding an
ethical code, and handling complaints and professional reprimands.
2. Accreditation of teacher education and training programs: The accreditation of
teacher education and training programs in South Africa is the responsibility of
SACE. This makes it easier to guarantee that these programs uphold the necessary
criteria for quality and efficacy and that they adequately prepare aspiring teachers.

3. Developing the profession by managing and implementing the CPTD system,

establishing and enforcing standards for pre-service and in-service teacher
education, determining the needs of the field and offering solutions, and
encouraging teacher induction and professional designation are all aspects of this
work.
4. Promoting teaching as a profession creating opportunities to recognize the
achievements of the teaching profession, advancing teacher appreciation initiatives,
and enhancing the standing and reputation of the teaching profession.
5. Informing the profession by compiling statistics and reports on ethical cases, carrying
out research, and informing the field of the results.

6. Advising the Ministers of Education, Council, and the Profession regarding issues
relating to teacher development and training, entry requirements for the profession,
teacher induction, and other pertinent issues relating to education.
Thembisile Buthelezi, 21894434 Educational Leadership and Management

7. Promoting research on professional matters through creating a research unit,

creating research guidelines, doing professional-related research, and encouraging
educator-based practitioner research.
8. Contribution to education policy: SACE has a significant impact on the creation of
policies and practices that have an impact on both the teaching profession and the
educational system as a whole in South Africa.
9. Creating awareness of professional matters to educators through establishing two-
way communication with educators, creating a complete advocacy and
communication plan, using a variety of communication tools and techniques, and
making sure that all educators receive at least one publication from SACE each year.

10. Professional regulation: SACE is in charge of registering educators professionally,

therefore it makes sure that all instructors and educators adhere to the minimal
requirements for training, expertise, and competence needed to work as educators
in South Africa. The credibility and integrity of the teaching profession are preserved
as a result.

c. Describe the membership, terms, key functions of a School Governing Body.

A School Governing Body (SGB) is an elected group of individuals who are accountable for
managing and governing a school. The SASA (SASA), Section 16(1), states that the
governance of a public school is entrusted to its governing body, which always acts on behalf
of the school and is in a position of trust. According to Section 23(1) of the same act, the
governing body of an ordinary public school is made up of elected members, including the
principal in an official capacity, and co-opted members as per Section 23(2). Elected
members must represent each of the specified categories.:
 Parents of learners at the school that are not workers of the school
 Educators in that particular school
 Members considered as non-teaching staff
 Learners from eighth grade upwards (High School)

As outlined in the (Education, 2018) SGB election document, for learners, the term of office
is one year, while it cannot exceed three years for all other members. The school principal is
also a member of the SGB because of their formal position. SGB members can be re-elected
for subsequent terms if nominated and elected by stakeholders.

Section 20 of the South African Schools Act 84 of 1996, which has been revised, outlines a
range of duties that are applicable to all school governing bodies (SGBs). The governing body
is responsible for representing the school and acting in its best interests, always operating
under the school's name. The key functions of the SGBs, must be able to promote the best
interests of the school (SASA Section 20.1), to ensure provision of quality education for all
learners in that particular school (SASA Section 20.1a). School governance is about creating,
implementing, supervising and evaluating policies and rules, which guide and govern the
actions of the school and its members. Creation of policies/making sure school runs
accordingly; raising money; protecting rights of learners; maintaining discipline, financial
management

The SGB has the right to make decisions on the following:

Thembisile Buthelezi, 21894434 Educational Leadership and Management

• an admissions policy for the school (SASA Section 5.5);

• the language policy of the school (SASA Section 6.2);
• religious practices to be followed at the school (SASA Section 7).

And adopt a;
• code of conduct for learners which sets out disciplinary procedures (SASA Section 20.1d),
• Constitution setting out how the SGB will operate (SASA Section 20.1b);
• school mission statement setting out the values and beliefs of the school (SASA Section
20.1c).

As per (SASA Section 21.1), other functions may include:

 Decide the times of the school day.
 Make recommendations regarding the appointment of educators at the school.
 Administer the finances of the school
 Deciding on the extramural curriculum and the choice of subject options
according to provincial curriculum policy;
 Paying for services to the school

d. Explain the relationship between the SASA and the South African Constitution.
The SASA (South African Schools Act) is a law that governs the operation and management
of schools in South Africa, while the South African Constitution is the highest law in the
country and establishes the principles and values that guide all other laws and policies in
South Africa.

The relationship between the SASA and the Constitution

The right to a fundamental education is not a stand-alone or exclusive entitlement. It
connects to other Bill of Rights-listed rights in a number of ways. As a result, an infringement
of one right may also constitute an infringement of another, and vice versa. As a result, the
SASA was created in accordance with the Constitution's requirements and is subject to all of
its limitations. The rules and limitations outlined in the Constitution are binding on the SASA
law in South Africa. The Constitution defines the authority of institutions involved in
education, lays out the guiding ideas and values that guide educational policies in South
Africa, and describes the framework for protecting learners' rights.

BEST INTERESTS OF THE CHILD

Section 28(2) of the Constitution emphasizes that a child's best interests are of utmost
importance in any matter concerning them, and imposes its own set of responsibilities.

EQUALITY AND THE PROHIBITION OF UNFAIR DISCRIMINATION

The right to equality and the prohibition of unfair discrimination is important in education
litigation.

DIGNITY
The right to human dignity, which is rooted in the concept of equal worth for all human
beings, is not only a fundamental value but also an independent right that informs all other
rights in the Constitution. This right protects individuals from degrading, humiliating,
Thembisile Buthelezi, 21894434 Educational Leadership and Management

exploitative, or abusive treatment or conditions. The poor learning conditions that many
students are exposed to are a clear violation of their right to human dignity.

RELIGION
Section 15 of the Constitution guarantees freedom of religion and belief, including the right
to freedom of conscience, thought, opinion, and belief. The topic of religion in schools is a
complex issue and will be addressed in a separate chapter.

FREEDOM AND SECURITY OF THE PERSON

Section 12 of the South African Constitution protects individuals' freedom, security, and
physical integrity. Many schools in South Africa lack adequate security and are in poor
condition, which poses a risk to learners' freedom and security. Furthermore, the behaviour
of teachers and principals can also put children at risk.

e. Why is ‘audi alterum partem’ important in a dispute.

The Latin proverb "Audi alteram partem" means "listen to the other side," and it is a
fundamental legal principle that calls for both parties to be given the chance to submit their
arguments before a judgement is made. The rule of law is upheld, justice, accountability, and
constructive dispute resolution are all promoted by this principle. The right to administrative
justice, which includes the right to be heard and the right to access information, is expressly
outlined in Section 33 of the Constitution.

The audi alteram partem concept is crucial in educational settings because it supports the
ideals of natural justice, safeguards the rights of both students and faculty, fosters a
welcoming and safe learning environment, and encourages responsible behaviour. This
principle promotes responsible behaviour and effective conflict resolution skills by giving
both sides a voice and working toward a solution that pleases both parties. The Promotion
of Administrative Justice Act (PAJA) of 2000 outlines how the right to administrative justice
would be implemented in South Africa. The Act mandates that administrative decision-
makers provide explanations for their conclusions and allow impacted parties a chance to be
heard before reaching a decision.

The principle of audi alteram partem is important in a dispute for several reasons:
Ensures fairness: By allowing each party a chance to tell their side of the story, fairness is
ensured. This makes the choice more likely to be just and fair. The audi alteram partem
concept, which ensures that both sides have a voice, encourages accountability and
transparency. This makes it easier to avoid making judgments based on prejudice or bias.

Helps to resolve disputes: The audi alteram partem principle promotes constructive and
peaceful conflict resolution by providing both parties with an opportunity to be heard. It
enables both sides to reach a consensus regarding the problems at hand and work toward a
solution that meets their needs. Protecting staff or student rights: Students and faculty in
educational settings have certain rights that must be upheld, such as the right to a fair trial.
The audi alteram partem principle safeguards fundamental rights by guaranteeing that both
parties have a chance to be heard.
Thembisile Buthelezi, 21894434 Educational Leadership and Management

Lastly, it upholds the principles of natural justice: Natural justice's core premise of audi
alteram partem is significant in all legal situations. Respecting these principles guarantees
that decisions are made in an educational setting in compliance with accepted legal concepts
and procedures, as well as the rights of all parties.

Part 2

a. Choose a current (last 5 years) educational issue in the media and discuss the issue in relation
to relevant education regulations/law/law concepts.

Body of a 4-year-old girl found in Eastern Cape school pit toilet. (ONGOING CASE)

b. Contextualise the issue. Describe clearly and concisely what happened?

(McCain, 2023), a news24 journalist, reported that, the body of a four-year-old girl was found in a pit
toilet on Thursday, the 9th of March 2023, at a primary school in the Eastern Cape, prompting the
police to open an investigation. The discovery was made on Tuesday after the child did not return
home on Monday. The child's mother went to the school the next day to inquire about her
daughter's whereabouts and raised the alarm when she couldn't find her.

Updated: The Department of Education (Minister) has claimed that the child was probably not killed
by drowning into the pit toilet but rather someone had committed murder and thrown her body
inside the school’s toilet.

The police are still investigating this case.

c. Explain why it is an educational problem.

Because it shows the inadequate infrastructure and facilities in some South African schools, this is an
issue with education. The lack of infrastructure equals to the lack of quality education. The event
also calls into question the security of students at school and the necessity of effective oversight and
safety precautions on school grounds. This for sure disrupts the process of teaching and learning.
The fact that such a tragic incident occurred in a school where young children are meant to feel safe
and secure underscores the need for urgent action to address the challenges facing many schools in
South Africa. Given that this unfortunate incident took place in a place where young children are
supposed to feel safe and secure, it is critical to take immediate action to solve the problems that
many schools in South Africa are currently facing. The incident also highlights the need for increased
accountability on the part of government authorities and school administrators to guarantee that
students are given safe and healthy learning environments.

d. Discuss the relevant education regulations/law/law concepts that pertains to the issue you
have chosen.

(Republic of South Africa 1996)

Having unsafe toilet facilities, such as pit toilets, in public schools goes against the right to sanitation
that is protected by the South African constitution. This violation not only impacts the right to
sanitation but also infringes upon other rights, such as the rights to health, education, dignity, and
privacy, as outlined in Section 27(1)(a) of the Republic of South Africa. Section 10 of the constitution
states that everyone has an inherent right to dignity, which includes the right to have their dignity
respected and safeguarded.
Thembisile Buthelezi, 21894434 Educational Leadership and Management

The school has violated their constitutional responsibilities concerning the rights outlined in Sections
9, 10, 11, 24, 27, 28, and 29 of the Constitution.

(Nene, 2023) reports that the law of norms and standards for public school infrastructure was
established in 2013, making pit latrines illegal. However, nearly a decade later, tragic incidents such
as learners falling into pit latrines and losing their lives continue to occur. It is unacceptable that
learners are put in danger and should not have to attend school with the risk of losing their lives.

The Department of Education's failure to use the allocated funds to upgrade existing toilets or install
new and safe toilets at schools, both before and after the tragedy, shows a complete lack of
comprehension of learners' fundamental human rights. This failure is entirely unacceptable. Section
27's efforts to address the situation and engage with the Department of Education seem to have
gone unheard. Society has a significant interest in ensuring the safety of its children in the school
system and under the care of schools and teachers who are responsible for safeguarding the
learners' constitutional rights.

According to Bill of Rights Section 28(d): Every child has the right to be protected from
maltreatment, neglect, abuse or degradation.

Negligence

•The tragic death of the four-year-old was predictable, considering the state of the toilets on the
school premises.

•Failure to maintain safe and adequate toilet facilities for learners, which resulted in the tragic
incident.

•Failure to take immediate action to locate the missing child after she did not return home from
school the previous day.

•Failure to provide a safe and secure environment for learners, as required by their constitutional
rights.

•Failure to implement measures to prevent similar incidents from occurring in the future, despite
being aware of the risks posed by pit latrines and the funding allocated for upgrading them.

•Failure to properly supervise and ensure the safety of learners, especially when using the toilet
facilities.

Breach of Duty of Care

•Educators have both delegated and original authority and power to care for learners. This means
that they have a double responsibility to fulfil their duty of care under their supervision. It states that
an educator must care for learners like a bonus or diligens paterfamilias, a good, caring father of a
family (Joorst, 2023).

•The school neglected their responsibilities to ensure the safety of the learners, which includes their
constitutional obligation to protect them. The class educator should have accompanied the learners
to the bathroom.

Breach of In Loco Parentis- “in the place of Parent”

•The parents of the young girl had the right to trust that the defendants would provide a safe
environment for their child while under their care.
Thembisile Buthelezi, 21894434 Educational Leadership and Management

Law of Delicts

The learner/parents would seek compensation for damages suffered, whether patrimonial loss or
non-patrimonial loss as a result of the negligent conduct. Patrimonial loss is claimed as financial loss
such as property damage which may holistically include learner’s belongings such as book, school
uniform or medical expenses, whereas, non-patrimonial loss are not linked to money and are
claimed as result of pain and suffering, loss of amenities, emotional shock, etc. The court is to decide
the delictual liability of the negligent act conductor’.

- Conduct/Action: The failure (omission) of the teacher to supervise the child led to the child's
death. The failure of the Education Department to get rid of pit toilets in schools.
- Wrongfulness: The action of the teacher not supervising the child was wrongful and as
human beings we know that any child of such young age cannot be trusted using a toilet
alone, what more to say about a pit toilet.
- Fault: Negligence (culpa)
- Causation-link: The girl fell into the pit toilet and drowned, which would not have happened
if the school had provided safe and appropriate toilet facilities for its learners.
- Harm/Damage: non-patrimonial loss

Based on the previous similar case of a five-year-old Michael Komape, in 2014, who fell and drowned
into a pit toilet at Mahlodumela Primary School in Limpopo. The parents of the deceased girl could
potentially bring a claim for damages against the school and the Department of Education. The
following are some of the claims they may pursue:

Non-Patrimonial Loss

Wrongful death: The parents could claim for the wrongful death of their daughter due to the
school's negligence in failing to provide safe and adequate toilet facilities. This claim seeks
compensation for the loss of their daughter's life, funeral expenses, and other related costs.

Emotional trauma and shock: The parents may claim for the emotional trauma and shock they
experienced as a result of their daughter's death. This claim seeks compensation for the
psychological impact of the tragedy, such as grief, anxiety, and depression.

Constitutional damages: The parents could claim for damages for the breach of their daughter's
constitutional rights, including the right to life, dignity, and a safe and healthy environment. This
claim seeks compensation for the violation of their daughter's fundamental rights.

Loss of support and companionship: The parents could claim for the loss of support and
companionship resulting from the death of their daughter. This claim seeks compensation for the
loss of their daughter's love, companionship, and support.

e. What is the ethical/moral dilemma?

No adult would want a 4-year-old child to go alone to a toilet, let alone a pit latrine toilet? A child
should always be accompanied by someone older to take care of the child before and after she/he
uses the toilet. The fact that the Department of Education finds it necessary to defend themselves by
saying it is not he toilets that killed the child but probably the child was killed and thrown inside the
pit toilet is not ethical. They should be willing to take responsibility for the fact that these kinds of
toilets should have not been there in the first place. Should these pits latrine have not been there,
this could not have happened.
Thembisile Buthelezi, 21894434 Educational Leadership and Management

The ethical dilemma in this case revolves around the duty of care owed by the school and the
Department of Education to the learners. It raises questions about whether the school and
Department of Education fulfilled their obligation to provide safe and adequate sanitation facilities
for the learners.

The tragedy highlights the devastating consequences of the failure to prioritize and address basic
human rights such as access to safe sanitation facilities, especially in underprivileged areas. The
moral and ethical question is how to balance the right to education with the right to health and
safety, and whether it is acceptable for children to be exposed to such unsafe conditions in their
place of learning. It also raises questions about accountability and responsibility, and what measures
should be taken to prevent such incidents from happening in the future.

f. Take a position on the issue informed by the law and moral considerations and explain how
the matter could have been dealt with differently.

According to (Joorst, 2023) class lecture slides, previous judgements of cases can be used or
consulted to solve the current cases. What were the previous rulings on this case? In this case, I use
the famous case of a five-year-old Michael Komape who fell and drowned into a pit toilet at
Mahlodumela Primary School in Limpopo, in 2014.

After Michael Komape, age 5, drowned in a pit latrine at his school outside of Polokwane in 2014,
Section 27 filed a lawsuit against the government on behalf of the Komape family. The director of
Section 27, Mark Heywood, expressed his hope that the case will draw attention to the larger
problem of subpar cleanliness in schools around the nation.

The Limpopo education department was mandated by earlier rulings to get rid of pit toilets in
schools. The Komape family returned to court, however, after the department offered a plan that
would take more than ten years to implement. In a decision in the family's favour, the Limpopo High
Court ordered the state to give a list of all schools with pit toilets within 90 days, along with
measures to get rid of them. Every six months, the state is required to report to the court on its
progress toward getting rid of pit toilets.

After carefully considering all the facts and relating it to the above case judgement, I have
determined that the Department of Education, the school, and the teacher should all be charged for
negligence. The Department of Education should also pay for the case attendance fee of the parents
of the child until the case is judged and finalised. The teacher for grade R class teacher should be
suspended and arrested for carelessness. The school including school leadership and management
should be charged because they always knew the bad state and dangers of having pit toilets in the
schools and allowing the young learners to use the same toilets. The learner’s rights as stated above,
have been violated and someone needs to take the blame and responsibility.

We have had a number of such cases in our country and it is not acceptable that such young learners
are hindered a chance to live in a such tragic way. One of the solutions to ensure the best interests
of learners at schools with pit toilets is to implement a structural interdict. This will force the
department of education to take necessary action to provide basic sanitary requirements for these
learners, despite the enormity of the task.
Thembisile Buthelezi, 21894434 Educational Leadership and Management

References
Cape, P. o. t. W., 2017. Provincial Gazette Extraordinary 7810. [Online]
Available at: https://learn.sun.ac.za/course/view.php?id=80322
[Accessed 4 April 2023].

Joorst, J.P. 2023. Educational Leadership and Management 771. Class lecture (Educational
Leadership and Management 771). Stellenbosch: Stellenbosch University.

Joubert, R., 2017. The Law of Education in South Africa. 3rd ed. s.l.:Van Schaik.

McCain, N., 2023. news24. [Online]

Available at: https://www.news24.com/news24/southafrica/news/body-of-4-year-old-girl-found-in-
eastern-cape-school-pit-toilet-20230309
[Accessed 05 April 2023].

Nene, N., 2023. Eye Witness News. [Online]

Available at: https://ewn.co.za/2023/03/11/equal-education-authorities-should-account-for-ec-pit-
latrine-death
[Accessed 5 April 2023].

SACE, 2011. South African Council for Educators. [Online]

Available at: https://sace.org.za/assets/documents/uploads/sace_61547-2016-08-31-The%20Role
%20of%20the%20South%20African%20Council%20for%20Educators.pdf
[Accessed 05 April 2023].

The Constitution of the Republic of South Africa, 1996

The South African Schools Act, 84 of 1996

The Promotion of Administrative Justice Act, 2000

The South African Human Rights Commission, 1995

The South African Law Reform Commission, 1979