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EDA 3058

SOUTH AFRICAN EDUCATION LAW


AND PROFESSIONAL ETHICS

DR CHRIS STEINMANN

Why it is important that each educator should have a


working knowledge of law in education?

In view of the enormous changes that are taking place in our education
system, it is more important than ever for educators to have a working
knowledge of those aspects of the law that apply to the school situation.

Everything that happens in a school is subject to and governed by a law or


regulation and that this has legal implications for all parties involved.

Education Law includes the legislation, policy and legal principles that
regulate the different relationships (relationships between the different
stakeholders) in the education setting.

What is Education Law?

It is a discipline that deals with the role of the law in education.

It takes principles and approaches from the sphere of the law and applies
them to the education situation in a unique way to create instruments to
regulate education.

It ensures that education takes place within a milieu of order, harmony and
security.

The main purpose is therefore the


creation of a milieu that will be
conducive to education.
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Aim of the section on Education Law


The aim of this section of the module is to:

introduce you to the field of Education Law;

acquaint you with your rights and obligations as educator;

provide you with an awareness of learners rights and obligations; and

equip you with the necessary knowledge, skills and attitude to enable you to
make lawful decisions and act judicially correctly in education practice.

Assessment criteria
You will know that the outcomes were attained when the following can
be done:

describe legislation as a source of Education Law;


interpret and apply specific legal provisions in case studies and practice;
interpret, explain, protect and promote human rights as embedded in the Bill
of Rights (South African Constitution: Chapter 2);
demonstrate a positive attitude towards own rights and obligations, and
protect the rights of others;
explain what is expected of the educator under the legal duty of care and
act accordingly;
describe and explain relevant aspects of labour law in education;

Study hints

At the beginning of each study unit you will find a list of outcomes. The
outcomes explain the knowledge and skills that must be mastered for the
specific study unit, in other words, what is expected of you.

The study guide furthermore guides you through each step of the learning
process so that you can master the content by attaining the outcomes.

Once you have worked through a section, test yourself against the
outcomes to establish whether you have attained them.

You will notice that some outcomes require that you should practically apply
the principles and approaches. While you study you have to constantly
consider the practical implications of what you have learned.

You do not have to be able to identify a specific article/section and to


quote verbatim from an Act.
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What I expect of you in the examination


for this section

Sources of Education Law?

The responsibility of the educator in


terms of the SA Constitution
In terms of the SA Constitution (SA, 1996a) the learner has the right to:
freedom and security of the person (section 12),
an environment that is not harmful to his health or wellbeing (section 24),
be protected against maltreatment (section 28)
education (section 29).
These rights imply responsibilities on the side of the educator. The Constitution
furthermore determines that the best interests of a child are paramount
(section 28(2)). The educator is the adult to whom the learner is entrusted for
long periods of time. During this time the educator has the duty to protect the
child from harm, care for the learner, and to ensure that the school environment
is conducive to sound education.

Bill of Rights

Educators should have substantial knowledge of human rights to ensure


reasonable conduct towards learners. Educators must be familiar with the
rights and obligations of learners so that learners cannot manipulate
educators by, for example, making claim to rights that do not even exist.
Educators must also be aware of the correct interpretation and application
of these rights.

All natural persons as well as legal persons are the bearers of rights and
responsibilities. Most rights have a corresponding duty (responsibility or
obligation). For example, the learner has the right to be educated, but he or
she also has the responsibility to attend school and to participate actively in
learning activities.

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Examples of rights that have a direct


bearing on education

Human dignity (Section 10)

This provision recognises the right of people to be treated with respect and
dignity.Every persons dignity should be respected and protected. As a result,
learners and educators, as human beings, may never be treated as mere
objects. Any such treatment would impair their dignity and constitute an
infringement of the right to have their dignity respected. Classroom managers
should in all their dealings with learners keep the learners 'right to human
dignity in mind.

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Examples of rights that have a direct


bearing on education

Freedom and security of the person (Section 12)


The treatment of a learner should be of such nature that it is never cruel,
never humiliate or shame him or her, and is never done in a merciless
manner. For example, in the school context, punishment may not be
unreasonable, cruel or degrading. Punishment would be considered
unreasonable, cruel or degrading if:

it were excessive and negligently administered


it were not in proportion to the offence
there were not sufficient cause for punishment
if it were inappropriate for a learner of that age

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Examples of rights that have a direct


bearing on education

Education (Section 29)


The right to education has implications for suspension and expulsion if a
learner is suspended or expelled from school, his/her right to education is
actually infringed upon. Again it must be remembered that rights may be
limited in terms of section 36 (SA, 1996a) as long as the set requirements
are met.

Access to information (Section 32)


If an educator, for example, complained that a learner misbehaved regularly
and this resulted in a disciplinary hearing, such a learner would have the
right of access to any information such an educator had on the alleged
regular misbehaviour.

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Examples of rights that have a direct


bearing on education

Just administrative action (Section 33)


Administrative action refers to the exercising of power by, for example,
disciplining educators or learners. In cases where someones rights may be
affected by administrative action, even if the person in question has not
fulfilled corresponding duties, he or she has the right to fair, reasonable and
procedurally correct administrative action. Fair procedures for suspension
and expulsion of learners are included in the South African Schools Act 84
of 1996.

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The responsibility of the educator in


terms of education legislation

One of the educators roles in terms of the Norms and Standards for Educators
in the Education Policy Act (SA, 1996c) is the community, citizenship and
pastoral role in terms of which
the educator will uphold the Constitution and promote democratic values and
principles in schools and society. Within the school, the educator will
demonstrate an ability to develop a supportive and empowering
environment for the learner and respond to the educational and other needs
of learners.
The exercising of this role is further emphasised by provisions in the SACE
Code of Professional Ethics for Educators. The Code states that educators
who are registered with the Council:
takes reasonable steps to ensure the safety of the learner (2.11) and:
is not negligent or indolent in the performance of his or her professional
duties (3.13).
The educator, therefore, has the responsibility to ensure that learners are
safe.
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Common law
Can be defined as the unwritten law that is derived from RomanDutch and English law.When a specific matter is not governed by
legislation, Common Law usually applies. Common Law provides
us with the principles for fairness, reasonableness and justice.
Common Law principles form the basis of reasonable and fair
disciplinary actions, e.g. the right to state your case in a fair hearing.
Another example of a Common Law principle is the careful supervision
of the educator.

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COMMON LAW PRINCIPLES THAT


APPLY TO EDUCATION
The ultra vires principle ---(beyond the legal authority eg. SGB may
not expel a learner.)
The intra vires principle--- (within the power/ legal authority eg. SGB
may suspend a learner. )
The rules of natural justice (eg. When a learner is subjected to
discipline) which are based on two principles namely:
audi alteram partem --- hear the other side (learners should be
given the opportunity to present their version on matters.)
nemo iudex in sua causa --- an impartial third-party decision maker
who has no prejudice towards the case.

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COMMON LAW PRINCIPLES


THAT APPLY TO EDUCATION
In loco parentis (in the place of the parent during normal intramural or
extramural school activities.)
Bonus paterfamilias requirement (Educators are expected to act as
reasonable persons.)
The law expect from the reasonable educator:
To know children and the nature of children;
To be knowledgeable and competent in terms of the demands of their
occupation;
To know what dangers children are exposed to; and
To know the legal rules that apply to their profession
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COMMON LAW PRINCIPLES THAT


APPLY TO EDUCATION

The in loco parentis position of the educator gives him/her the right to
enforce authority, for example, to establish rules and to maintain discipline, but
it also places the responsibility on the educator to care for the emotional and
physical wellbeing of the learner within the context of being the caring
supervisor.
Within this framework it is quite possible that the educator, school and/or
education authorities might be held accountable for any harm that the learner
may suffer while being under the supervision of the educator.

The in loco parentis principle is directly related to the law of delict (Study
Guide p 162), which states that any person who suffers any harm or undesired
consequence as a result of negligent behaviour of another person will have the
right to some form of compensation from the latter person.

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What is Professional Ethics?

Professional ethics refer to the ethics, norms and moral rules or


principles that are applied to those practicing a particular profession. In
other words, professional ethics are the action and behaviour that are
worthy of emulation by certain professions.

Our society has attached a special meaning to the term professional.

A professional is expected to conduct himself or herself at a higher level


than most other members of society.

Educators define the status of their profession through their behaviour


inside and outside the school. The actions of the educator both inside and
outside the school should reflect professional dignity and professional
responsibility as required by the ethics of his/her profession.

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Criteria for the evaluation of teaching as


a true profession.

Teaching provides a service that is unique and specialised.

The teaching practitioner has specialized academic knowledge, skills and


norms that can only be obtained through intensive study at a tertiary
educational institution.

Professional practitioners have professional autonomy, although members


are subject to an ethical code that determines how they should provide their
service and how they should act. It make the educator aware of the
importance of ethical behaviour.

The teaching profession is thus not free in the sense of having no restraints
but its responsibility is to be found in a self-imposed code.

The teaching profession strives to promote both its own status and that of its
practitioners.
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Aim of the section on Professional Ethics


The aim of this section of the module is to:

to be familiar with the legal prescripts for the educators conduct in terms of
the Code of Professional Ethics (SACE) and be able to act in accordance
with its provisions.

to obtain and demonstrate knowledge, and understanding of professional


ethics with regard to the teaching profession.

demonstrate knowledge and understanding of educators as professional


people.

demonstrate knowledge and understanding of the organised teaching


profession as a role player in education.

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Assessment criteria
You will know that the outcomes were attained when the following can
be done:

apply criteria for a profession to the teaching profession.


practise and promote a critical, committed and ethical attitude towards
developing respect and responsibility towards others.
to analyse a code of conduct for educators.
to interpret the educator as an ethical leader.
judge whether educators have any professional status.
discuss the professional responsibility of educators.
to identify and interpret the objectives and functions of teaching councils,
teachers associations and teachers unions.
to achieve understanding of the teaching profession.
to interpret appraisal of educators.

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Study hints

At the beginning of each study unit you will find a list of outcomes. The
outcomes explain the knowledge and skills that must be mastered for the
specific study unit, in other words, what is expected of you.

The study guide furthermore guides you through each step of the learning
process so that you can master the content by attaining the outcomes.

Once you have worked through a section, test yourself against the
outcomes to establish whether you have attained them.

You will notice that some outcomes require that you should practically apply
the principles and approaches. While you study you have to constantly
consider the practical implications of what you have learned.

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What I expect of you in the examination


for this section

You must be able to answer the questions for this section:


What are ethics?
What do ethics refer to?
What are the principles of professional ethics?
Are there criteria, characteristics or requirements that a profession must
meet?
What does a professional code of conduct involve?
Can an educator be regarded as an ethical leader?
What are the seven roles of an educator?
What does professional status involve?
Do educators have professional status?
What is the relationship between professional status, professional
consciousness and professional image?
What role does the organised teaching profession play in South Africa's
education system?
What are the objectives and functions of education councils, associations
and unions?
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SCOPE OF WORK

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To conclude
I sincerely hope that when you have completed this module you should have
the necessary skills to act professionally and in accordance with the
requirements of the law in conducting your tasks and in your relationships
towards other parties in education.
Ignorance of the law excuses nothing (Ignorantia legis neminem
excusat.) You cannot go and break the law and then tell people, Sorry, but I
didnt know. The burden is on you to know the law. Instead of adhering to the
maxim Ignorance of the law is no excuse, let us aim towards a new maxim:

Knowledge of the law makes life easier


and cheaper.
I wish you all of the best for this semester and for this module specifically.

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