ASSIGNMENT: Common law principles – Law of Delict (Negligence)
JC Van der Walt and Rob Midgley define a delict "in general terms [...] as a civil wrong," and more na
owly as "wrongful and blameworthy conduct which causes harm to a person" (2005: par. 2). Negligence (culpa) occurs where there is an inadequate standard of behaviour. It reflects the law's disapproval of the defendant's conduct. The conduct is tested against what the reasonable person in the position of the defendant would have foreseen and what he would have done to avoid the consequences (Kruger v Coetzee XXXXXXXXXXSA 428 (A)).
Scenario: ABC Primary is a popular school which is based in Alphabet Road. The educators in this school are known for their enforcement of strict discipline. Joe, however, is a disobedient student and is reprimanded weekly by his educators. He also has a habit of swinging on his chair in class. At the back of his classroom is a
oken desk with a notice typed in bold font that reads: “BROKEN DESK – STAY AWAY”. The desk and the sign had been placed there that morning. The classroom teacher had a
anged for the maintenance team to remove the desk after school hours in order to avoid the disruption of the lessons. Joe ignored the notice and sat on top of the
oken desk. The desk collapsed and the heavy lid and the iron hinge hurt and cut his leg and arm. Covered in blood he made his way to the school office with his teacher who en-route to the office reprimanded Joe and stated that he has to undergo detention and be sanctioned with a demerit. The principal phoned Joe’s father to get Joe medical attention. The father who was extremely furious, sent the medical bill to the school for payment. In addition, he stated that his son should not have to undergo any form of punishment by the school such as detention or a demerit because of the incident since the school is responsible.
· With clear reference to the above scenario discuss negligence in a legal context.
· Your discussion must include reference to the relevant law. Consult legislation, case law, academic articles, your prescribed book and knowledge gathered from various possible scenarios presented in lectures.
Assignment Instructions
Your assignment should include:
1. A suitable introduction. (5 marks)
2. Content knowledge (the Law of Delict (
ief overview); what negligence entails; the test for negligence XXXXXXXXXXmarks)
3. Argument and critical analysis (how the principle applies to the scenario XXXXXXXXXXmarks)
4. Complete your discussion with an appropriate conclusion that should draw main points to a close. Provide any insights you have gained XXXXXXXXXXmarks)
5. Use of examples and substantiation of negligence in a school environment XXXXXXXXXXmarks)
6. Ensure that you follow the co
ect style in terms of the structure and paragraphs XXXXXXXXXXmarks)
7. You must reference both in-text as well as in a separate reference list at the end. Your reference list should include information from a minimum of 7 sources e.g. online articles including journal and news articles, textbooks, interview(s), journals, magazine and news articles (Harvard style XXXXXXXXXXmarks)
8. Ensure that your language, grammar and spelling are appropriate and co
ect XXXXXXXXXXmarks)
9. Use the assignment ru
ic below to guide you.
UNIT 3
UNIT 3
LECTURE:1
THE STRUCTURE AND FUNCTION OF EDUCATION LAW IN
SOUTH AFRICA
LECTURE OUTCOMES:
• The sources of law in South Africa
• The Common Law principles
The Sources of Law in South
Africa:
• RECAP: As noted in the previous Unit, South African Law is
made up of the following:
• The Constitution
• Legislation
• Common Law
• Case Law
• Customary Law
IN THIS UNIT, WE WILL CONCENTRATE ON THE COMMON
LAW.
COMMON LAW:
• Is made up of legal rules which were not originally written down but which
have over time become accepted as the underlying basic law of society.
Adapted from the Roman- Dutch and English Laws.
• The courts still apply these unwritten (uncodified) rules, this means that
courts can judge cases according to principles and societal rules and norms
as well as behavioural norms which are not written down in legislation.
• Subsections 39(2) and 39(3) of the Constitution acknowledge the
importance of common law -it has to be taken into consideration when
legislation is interpreted.
• Source of law, but differs from legislation because it is not promulgated
(enacted/passed/circulated)by Parliament.
Common Law Principles:
There are many Common Law principles, however, for the
purpose of this module, we will only look at the principles that are
elevant to Educational Law such as:
• Ultra Vires
• Parents as Primary Educators
• ‘In loco parentis’
• Reasonableness
• Negligence*
• Rules of Natural Justice
Ultra Vires:
• The ultra vires doctrine is a common law principle.
• Common law rule concerned with the validity of managerial or
administrative acts.
• Ultra vires means beyond legal authority.
• E.g. If a principal performs an act that is not within his or her powers
or that is in contravention of certain legal rules (he/she dismisses an
educator). It is only the HoD who is empowered to do so.
• The term becomes a
oad criterion for all the requirements for
validity of an administrative action.
• Intra vires means ‘within the legal authority’ –opposite of ultra vires
Parents as the Primary Educators:
• In terms of common law, parents have the rights to direct the
education, religion and general up
inging of their children.
• In Roman Law, the parental power (‘patria potestas’ ) of the
father of the family (‘paterfamilias’) was an absolute right of
control.
• In South African law ‘Parental power’ denotes all the rights and
duties of parents in respect of their minor children.
• It also denotes parental responsibility to decide on the nature
and content of the education that a minor child should receive.
• Parents are the primary educators and have parental power to
do so.
‘In loco parentis ’
• Literally translated this concept means ‘in the place of a parent’
• Educators act ‘in loco parentis’
• Although the parents and family are seen as the primary social
structure, since learners spend such long hours at school, educators
are seen as ‘the parent at the school’.
• There is a biotical relationship between a family and the society as
esult of kinship, grounded on love as its essence.
• A family provides love for education to take place, hence an educato
is expected to provide similar care and duty when dealing with
learners.
• Parents lack professional skills, (e.g. specialised knowledge of
subjects etc.) therefore they depend on educators (trained
professionals etc.)
‘In loco parentis’ continued…
• Educators act as secondary parents at school and schools
should be regarded as second homes for children.
• Provide specialised, formal, purposeful education.
• Educator and parent act independently within their own
sovereign spheres of influence (each plays his/her role).
• Educators derive their ‘in loco parentis’ position from the
authority delegated by parents when parents enrol their
children at the school and sign the admission forms.
• The status, duties and right of the educator as a person ‘in loco
parentis’ is regulated by legislation.
‘In loco parentis’ continued…
• In terms of the ‘in loco parentis’ principle, the children at school
(or involved in extra-mural school activities) 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:
• The ‘reasonable person’ is one who seen as the average person.
• Let us take a practical example in order to simplify this concept of the reasonable person:
• Is the reasonable person who lives in Du
an likely to expect a thunderstorm in summer
and therefore ca
y an um
ella?- The answer would most likely be YES.
• Will the reasonable person who lives in Du
an during summer likely to experience the
humidity and therefore aim to be in airconditioned room? The answer is YES.
• Is the reasonable person likely to ca
y a spare pair of flip-flops in her handbag whilst
wearing stilettoes, in order to change her shoes if the tiles at a mall are wet? Maybe- But
the answer is most likely NO.
• Will the reasonable person cash-out his/her insurance policy every morning just in case
he/she feels as though they might die enroute to work? The answer is NO
These are just a few examples to help you to gain an idea of what the reasonable person is.
Reasonableness Continued…
• In law, the reasonable person is used to measure or determine
the concept of negligence (this will be explained in the
forthcoming slides).
• The reasonable person test is used in many professions. For
example, the reasonable medical practitioner, the reasonable
attorney, the reasonable educator and so forth.
• This is used to determine whether the average person in that
particular profession is likely to behave or react in a certain
manner.
Reasonableness
Continued…
• Know children and their nature,
• Knowledgeable and competent in terms of the demands of their
profession/occupation,
• Know what dangers children are exposed to,
• Know the legal rules that apply to their profession,
• Should not be negligent,
• Being reasonable and making provision for possible
consequences are the criteria that the courts use to determine
whether negligence is at issue.
Negligence:
• Negligence is failure to exercise the necessary degree of care
for the safety and well-being of others.
• It may occur as a result of failure to act when there is a duty to
act
• It may occur as a result of acting in an improper manner.
• To establish if a person has been negligent it must be proven (a
duty of care between the learner and the school exists, if that
duty has not been fulfilled there has to be proof)
• Educators are professionals/experts hence they are expected
to demonstrate some expertise which adds to the standard of a
easonable person.
Negligence continued…
• In the case of an educator, that would be the standard of a
easonable educator (depending on the level of skill and
diligence possessed).
• The criterion adopted by law to establish whether a person has
acted negligently is the objective standard of the