EDUCATION LAW

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2 CHAPTER 1
ORIENTATION TO EDUCATION LAW
 LEARNING OUTCOMES:
On completion of this chapter, you should be able to:
• Explain where education law fit into the South African
legal system
• Be familiar with the South African Legal System
• Understand how each main branch of the South African
legal system contribute towards educational law.
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 The South African legal system

Public law Private law Formal law

Constitutional law Law of persons Civil procedure
Administrative law Family law Criminal procedure
Criminal law Law of obligations: Evidence
Labour law - delict Interpretation of statutes
-contract

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 1. What is Common law?

Common regulation is the frame of regulation created via way of means of judges
and comparable quasi-judicial tribunal via way of means of distinctive feature of
being said in written opinions.
Examples of common law
-Crime
-Murder
-Robbery
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-Rape

Siyakha Satli Community Programme March 2021

 Why is Common law applicable with inside the Constitutional
international ?
Common regulation became used to look if its in step with the
phase 39(2) of Bill of proper, in order that courts can factor
instances towards the suspect. This is utilized by the courts to
inspire the equipped courts to broaden any precept of the not
unusual place regulation to sell the spirit, guide and the gadgets
of the Bill of Rights. The not unusual place regulation
additionally includes the 3 components which can be Ultra vires
6 doctrine, Rules of not unusual place justice, In Loco parents
7 Define Constitutional Law two examples of it.
Constitutional regulation refers to Rights carved in federal and nation
constitution. It is a frame of essential concepts or hooked up precedents in
keeping with which a nation or different company is recounted to be ruled.

Examples of Constitutional regulation

-Equal protection.
-The proper to undergo arms.
-Freedom of religion
--It is likewise normally primarily based totally at the constructing of
Rights.

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Administrative regulation
-Administrative regulation is likewise one of the maximum vital prison area for a lecture room manager, for
the reason that Teacher performs a position as he/she plays many public features which are ruled via way of
means of administrative regulation concepts. It is likewise the department of public regulation that regulates
the sports of the general public administration.

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Administrative action

- Administrative legislative action

- Quasi-judicial action or administrative adjudicatory action
- simply administrative action

-ministerial action

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  In phrases of this Common regulation doctrine, the movements of an
10 expert need to observe the subsequent necessities
 -The govt officer need to be lawful placed.

 -The motion need to observe each contextual and procedural necessities.

 -Executive officer need to act pretty and feature motives in any respect
times.
 -The specific motion need to be said best via way of means of the man or
woman said via way of means of regulation.

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11
What takes place if the regulation does now no longer comply

 -If the regulation doesn’t observe Ultra vires doctrine, it'll nonetheless be reviewed, via way of
means of PAJA, It guarantees procedurally honest administrative movements, giving human beings
proper to request motives for administrative movements and selections and to have such movements
proven in courtroom docket.

 -The act might not contravene any regulation or the Constitution.

 -The motion itself need to be legal via way of means of the empowering law.

 -Administrative movements need to be taken for a motive legal withinside the empowering
provision.

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 Rules of Natural justice

 This regulations reminds of the phase 33 of the Constitution, which states as follows:

 -Everyone has the proper to administrative motion this is lawful, affordable and Equally.

 -everybody whose proper had been publicly broken via way of means of the executive movements have the proper to
receive written motives.

 -National law need to be enacted to provide impact to those rights, and

 -offer to the overview of administrative movements via way of means of the courtroom docket or, in which applicable,
an unbiased and independent tribunal.

 -Promote an green administration.

 The advertising of administrative justice act ( Act three of 2000) now have the unique necessities for lawful, affordable
and Equal administrative movements. The regulations have now been covered in law, however it stays a
comprehensible activity,.
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13

Conclusion

The not unusual place regulation stays applicable in on this millennial international in South African personal
regulation, and courts have responsibility to broaden not unusual place regulation concepts to sell the spirit,
guide, courage, reason and gadgets of the Bill of Rights. In phrases of not unusual place regulation concepts
lets in are appeared because the number one educators of children, however people in Loco parents,
consisting of educators, might also additionally have delegated or unique rights and responsibilities in
recognize of the kid education.

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14 What does section 29 (2) of the constitution provide?
 Everyone has the right to receive education in the official language or languages of their
choice in public institutions where that education is reasonably practicable√√

 In order to ensure the effective access to, and implementation of, this right the state
must consider all reasonable educational alternatives, including single medium
instructions, taking into account-√√

 equity

 - practicability; and

 - the need to redress the results of past racially discriminatory laws and
practices√

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15

According to section 28(2) of the

Constitution “a child’s best interests are
of paramount importance in every
matter that concerning the child”.
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 According to Oosthuizen (2013:446) the existence of strongholds catalyse
Geborgenheit purposively towards learners who find themselves in receptive
spaces in the school settings.

 Identify these school settings as highlighted by Oosthuizen.

 The teaching and learning environment in the classroom√

 The overall general safety of learners in the school√

 The safe position of learners on the sports fields and the school playgrounds√

 The safe position of learners in school workshops, laboratories and even school
toilets√
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 Highlight at least five general functions embedded in the holistic ambiance of
17 Geborgenheit.

 Education law regulates the rights and obligations of all parties who participate in education in
an equitable manner√.

 It encourages harmonising arrangements conducive to cooperation amongst all participants in

education√.

 It creates a clear framework for the role of the educator as a professional√.

 It interprets applicable statutory provisions establishing workable structures for leadership in

educational management and administration√.

 Education law provides a juridically based framework defining the authority of the teacher√.

 It amplifies the application of the democratic rights of human dignity, equality and freedom of
everyone concerned with education√.

 It furnishes all role players in education with the much needed understanding to participate in
18  Education law provides a juridically based framework defining the
authority of the teacher√.

 It amplifies the application of the democratic rights of human dignity,

equality and freedom of everyone concerned with education√.

 It furnishes all role players in education with the much needed

understanding to participate in educational praxis in a constitutionally
sound manner√.

 It focuses our activities on essentials of Geborgenheit by constantly

contemplating the constitutional imperative of the best interests of the
child√.

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 END

THANK YOU!
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20

CHAPTER 2 THE SOUTH AFRICAN CONSTITUTION

 LEARNING OUTCOMES:
On completion of this chapter, you should be able to:
• have gained an overview of various rights and
values in the South African
Constitution
• understand the application of these rights and
values in contemporary South African education
• apply these rights and values to situations in
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educational practice, and
• demonstrate how the Constitution enhances
security in education.
22

 The Republic of South Africa Constitution Act,

108 of 1996 came in operation on 4 February
1997 (Oosthuizen et al 1998:21).

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23

The two major groups of founding provisions

of the South African Constitution are:

A. The fundamental principles

B. The Bill of Rights

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 Section 1 of the Constitution sets out the basic
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values on which the Constitution (and
consequently the entire South African
dispensation) is based. Many experts regard these
values as the most significant part of the
Constitution. Examples include: human dignity,
equality, non-racialism and non-sexism, the
supreme authority of the Constitution, and the rule
of law in South Africa:

Siyakha Satli Community Programme March 2021

25  Section 1 of the Constitution reads as follows: 1.The Republic
of South Africa is one, sovereign, democratic state founded on
the following values:
 (a)Human dignity, the achievement of equality and the
advancement of human rights and freedoms
 (b)Non-racialism and non-sexism
 (c)Supremacy of the constitution and the rule of law
 (d)Universal adult suffrage, a national common voters roll,
regular elections and a multiparty system of democratic
government, to ensure accountability, responsiveness and
openness

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 Read section 1 of the South African Constitution (provided
above) carefully and then answer the question:
 Why are these values regarded as important in an educational
context?
 Use appropriate examples from your school context to illustrate
how the values mentioned in section 1 of the constitution are
related to Education Law.

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 Section 2 (see below) establishes the Constitution as the

highest authority in the country and any law or regulation (or
statutory directive of any kind) that conflicts with this is invalid.
In addition to this, any action (the conduct of a person and or
legal persona, for example) that conflicts with a provision of
the Constitution is invalid. The Constitutional Court was
established to test statutory provisions (e.g. acts) and actions
taken by people, among other things, against the provisions of
the Constitution.

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This Constitution is the supreme law of the
Republic; any law or conduct inconsistent
with it is invalid, and the obligations imposed
by it must be fulfilled

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 Section 6 determines that there are 11 official

languages in South Africa and that these languages
are equal in status and must consequently be treated
on an equal basis.

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  Section 6 of the Constitution reads as follows:
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 1) The official languages of the Republic are Sepedi, Sesotho,
Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English,
isiNdebele, isiXhosa and isiZulu.

 2) Recognising the historically diminished use and status of the

indigenous languages of our people, the state must take
practical and positive measures to elevate the status and
advance the use of these languages.

 .

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  3)

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 (a) The national government and provincial governments may
use any particular official language for the purposes of
government, taking into account usage, practically, expense,
regional circumstances and the balance of the needs and
preferences of the population as a whole or in the province
concerned; but the national government and each provincial
government must use at least two official languages.
 (b) Municipalities must take into account the language usage
and preferences of their residents.

 4) The national government and provincial governments, by

legislative and other measures, must regulate and monitor their
use of official languages. Without detracting from the provisions
of subsection (2), all official languages must enjoy parity of
esteem and must be treated equitably
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 Activity
 Study section 6 of the Constitution and indicate:
 (i) which of the official languages currently used in
South Africa cannot be regarded as a native language;
 (ii) the rights of the official languages listed in section 6
(1).
 (iii) What are the implications of section 6 for the
language policy at your school?

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 END

THANK YOU!
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 CHAPTER 5 THE LEARNER
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 LEARNING OUTCOMES:
On completion of this chapter, you should be able to:
• define and determine the factors that affect the status
of learners
• apply the various factors that determine status to the
benefit of the general welfare of learners
• distinguish the capacity of learners in the various
phases of development.
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The essence of a school is to develop the logical and analytical features of

a learner by creating teaching and learning opportunities.
The role of the educator in the said process

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37 The educator has to promote an environment of care and safety conducive to learning and teaching

To obtain an environment for optimal learning, the educator has to plan lessons which create
applicable learning opportunities

The educator should endeavour to act as a guide and not as an instructor and promote harmony
between didactical principles and the content of learning

The educator should endeavour to promote learner skills for the transference and application of
theoretical knowledge on the platforms of real – life encounters

The educator should endeavour to develop a relationship of trust in order to foster and promote an
interest for self – obtained knowledge in the learner

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38

Difference between a natural person and a juristic person

 A natural person includes all persons (human beings) irrespective of factors

such their race, creed, origin and menta or physical deficiencies

 A juristic person is an entity consisting of an aggregation of natural

persons who participate in legal trafficking – not on their own behalf, on
behalf of the juristic person who is legal subject
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39 According to (Robinson et al 2008:63) age is a very important status determining factor. Although
the attainment of majority is regareded as a major milestone in the life of a child, we should take
cognisance of the following two age categories: infans and pupillus.

Robinson’s assertion on the following competencies:

Capacity to act

Capacity to litigate

Accountability

Termination of minority

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40 Capacity to act

 The competency given by law which enables to perform valid legal actions such as
concluding a contract√

 The infans as a person has no capacity to act and can therefore not conclude a valid
legal contract, which implies that a parent has to conclude the contract on the minor’s
behalf

 A minor has only a limited capacity to act

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 Capacity to litigate
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 The competency enables one to sue or be sued as a plaintiff or defendant in a legal
action

 The infans obviously has no capacity to litigate on his her own, while the minor has a
limited capacity to litigate

 This implies that the minor may litigate with the assistance of his or her parents or
guardians

 In practice, it implies that the minor’s parents litigate on behalf of the minor

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Accountability

 It refers to the capacity of a person to be held legally responsible for his or her actions

 Legally capacity is therefore closely linked to a person’s age, maturity and insight

 The infans is not legally accountable due to his or her inability to discern between right and
wrong and can consequently not be guilty of a criminal offence nor be held delictually liable

 A rebuttable presumption exists in the case of minors between the ages of 7 and 14 years

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43 Termination of minority

 By legally marrying

 In certain instances, and under certain circumstances by applying to a Supreme Court for
an order declaring them a major

 By becoming emancipated and thus acting completely independently in a legal sense by,
e.g. concluding contracts without the assistance of a guardian

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44 The rights of a child as envisaged in section 28(3) of the constitution

To a name and a nationality from birth

to family care or parental care or to appropriate alternative care when removed from the
family environment

To basic nutrition, shelter, healthcare services and social services

To be protected from maltreatment, neglect, abuse or degradation

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 e) To be protected from exploitation labour practices √

 f) Not to be required or permitted to perform work or provide services that:

 are inappropriate for a person of the child’s age √

 place at risk the child’s well – being, education, physical or mental health or
spiritual, moral or social development √

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 kept separately from detained person over the age of 18 years

 treated in a manner and kept in conditions that take account of the child’s age

To have a legal practitioner assigned to him or her by the state and at state expense, in civil
proceedings affecting the child, if substantial injustice would otherwise result

Not to be used directly in armed conflict and to be protected in times of armed conflict

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 END

THANK YOU!
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 CHAPTER 6 LEARNER DISCIPLINE
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LEARNING OUTCOMES:
On completion of this chapter, you should be able to:
• define the essence of discipline in relation to educational
training
• distinguish between the application of proactive and
reactive measures in dealing with learner misconduct
• apply statutory, common law and case law principles in
dealing
49 with serious learner misconduct, and
• demonstrate how the absence of sound learner conduct
has a negative bearing on a secure teaching–learning
environment (geborgenheit).
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 6.1 INTRODUCTION
 Discussion on the issue of the learner discipline

 The characteristics of discipline

 the different forms of discipline
 the common law principles and the legislative procedures for severe
disciplinary measures such as expulsion.

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What is discipline

The practice of training people to obey rules or a code

of behaviour.
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The characteristics of discipline

 Discipline is used to create order.
  Discipline ensures fairness.
  Discipline protects the learner.
  Discipline contributes towards the spiritual development of a
learner.
  Discipline is prospective (directed at the adult of the future).
  Discipline is directed primarily at correction and not
retribution.
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The different forms of discipline

A caring admonishment (reprimanding) taking into account the particular
background of the learner after a relationship of trust has been created with
him/her.
 General verbal disciplinary steps:
- educator using a changing tone of voice, voice inflection and tempo of
speech
- raising the voice
- the use of short interjections such as “hush” and “keep quiet”
- the use of humour and sarcasm
- general verbal admonishments, threats and reprimands
- reporting a learner to the principal
- verbal warnings
- a telephone or formal conversation with the parent(s) of the learner
54  General non-verbal disciplinary steps:
 - written warnings
 - isolation of the child by, e.g. separating him/her (temporarily) from the rest of
the class
 - forfeiting certain privileges
 - detention after school
 - temporary suspension from a particular school activity, e.g. a soccer match
 - additional work (as punishment)
 - making direct eye contact with the offender
 - non-verbal signals directed at the learner using facial expressions or body
language
 Suspension and expulsion
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The difference between precautionary measures and reactive measures to discipline

 Precautionary measures are aimed at preventing ill – disciplined conduct

and primarily entail good classroom practices by educators, good management
practices and governing skills by the principal and school governing body

 Reactive measures are measures that alter the response under investigation, e.g.
if applicants are aware of being observed their reactions may be influenced by
the observer and the act of being observed than by the stimulus object
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Examples that speak to acts of serious misconduct by a learner

a) Conduct that threatens the safety of other persons or infringes
their rights √√

b) Possession of threatening with or use of a dangerous weapon √√

c) Possession, use or transferring of illegal drugs or alcohol √√

d) Fighting, assault or abuse √√

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e) immoral conduct, blasphemy or use of foul language √√

f) Appropriate of a false identity √√

g) harmful graffiti, hate speech, sexism or racism √√

h) Theft or the possession of stolen goods √√

i) Illegal actions, vandalism or damaging or destroying school property

√√

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j) Disrespect conduct, unacceptable behaviour and insulting language
aimed at educators, workers or learners √√

k) Repeated disobedience or infringement of the school’s code of

conduct √√

l) Criminal or suppressive such as rape or sexual harassment √√

m) Victimisation, bullying or intimidation of other learners √√

n) Breaking examination rules √√

o) Intentionally providing false information and forging or

counterfeiting documents to obtain an advantage at school √√
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 59

 Two measures that can be used to deal with serious

misconduct

 Suspension

 Expulsion
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The key characteristics of a disciplinary procedure
Discuss

a) Fairness √

b) Preliminary investigation √

c) Requirements for a fair process √

i) Hear the other side (Audi alteram partem) √

ii) Sufficient time √

iii) Deliver a proper and understandable notice √

61  iv) Fair opportunity to be heard and represented √

 v) Fair hearing √

 vi) Notice of right to appeal √

 vii) Reasons for the decision √

 viii) Well – considered decision √

 ix) Impartiality of the decision makers √

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62

 Is corporal punishment permitted in schools as a disciplinary measure.

 No √

 Cite relevant legislation

No person may administer corporal punishment at a school to a learner √√

Any person who contravenes subsection (1) is guilty of an offence and liable
on conviction to a sentence which could be imposed √√

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63
 The common law principles and the legislative procedures for severe disciplinary
measures such as expulsion
 Requirements for suspension and expulsion
 suspension is when the pupil is temporarily refused admission to the school,
while expulsion is permanent.
 Section 9 of the South African Schools Act, 84 of 1996 (SA 1996(c)) determines the
procedures that should be followed when a learner is suspended or expelled from a
public school:
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 In terms of subsection 1, the governing body of a public school may

suspend a learner from attending on the following conditions:

 · After such a fair hearing the learner may not be suspended for a
period longer than one week; such suspension must be regarded as
a correctional measure.
  The period of suspension may extend for more than one week if a
recommendation has been made by the governing body to expel the
learner, pending a decision by the Director General of the relevant
provincial education
65  In terms of subsection 2, a learner may only be expelled by the
Director General of the relevant education department. Such an
expulsion will be valid only after the learner has received a fair hearing
and has been found guilty of serious misconduct.
 In terms of subsection 3, the MEC responsible for education must by
notice in the Provincial Gazette indicate:
  Which conduct (action) of the learner would constitute serious
misconduct in a public school in the specific province
  Which disciplinary procedures would be followed at the expulsion of
a learner
  Which proper legal process should be followed to protect the
interests of the leaner (and/or any other party involved in the
disciplinary proceedings).
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In terms of subsection 4, a learner (or the parent of such a child)
who has been expelled from a public school has the right to appeal
to the Director General of Education against such an expulsion.
Such an appeal must be lodged with the MEC responsible for
education.
If a learner is expelled from a public school, the Director General
of Education must, in terms of subsection 5, make other
arrangements for placing the learner at a public school.
 END

THANK YOU!
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