Edu Law: asked once / twice Flashcards
WHY SHOULD THE SACE INCLUDE DISCIPLINARY STEPS IN ITS ETHICAL CODE OF CONDUCT? (5)OR IN ITS CONSTITUTION
PG 143-146 PG 97?? PG 78 TUT 102
- discipline the educator who is guilty of gross professional misconduct
- the council has the power to remove the educators name from the register
- this means that the educator can no longer teach in a public school in SA
*WOULD THE EDUCATOR BE ABLE TO CONDUCT A LAWFUL SEARCH OF ALL LEARNERS IN CLASS? CONSIDER LEARNERS RIGHT TO PRIVACY +SECTION 8A OF THE SCHOOLS ACT (6)
PG 49-50
- only the schools act permits body searches.
- Section 8A of this Act states:
- only the principal his / her delegate may conduct random body searches of any group of learners or the properyy of a group of learners
- there must be a fair + reasonable suspicion that a dangerous object / illegal drug may be found on school premises / during a school activity
- or that 1 / more learners on school premises / during school activitiy are in possession of a dangerous object / illegal drug
LIST THE FACTORS THAT THE EDUCATORS HAS TO CONSIDER BEFORE CONDUCTING SUCH A SEARCH (4) PG 50 SG
- best interest of the learners to be searched as well as the best interest of the others learners at school
- the safety and health of the learners to be searched as well as the safety and health of the other learners at school
- reasonable evidence of illegal activity
- all relevant evidence received
*ARE PROVINCIAL SCHOOLS LEGAL SUBJECTS? (5) PG REF?
• a legal subject is persona luris, that is, a person in the eyes of the law and as such the bearer of rights and duties.
• **2 classes of legal subjects: 1. all human beings (called natural persons)
2. juristic persons / entities other than human beings upon which the law bestows legal personality
therefore a public school is a juristic person and would therefore be a legal subject.
*WHY WOULD THE ADMINISTERING OF CORPORAL PUNISHMENT CONSTITUTE AN ULTRA VIRES ACT?
EXPLAIN ULTRA VIRES PRINCIPLES AS WELL AS REFERENCE TO THE CONSTITUTION AND OTHER RELEVANT LEGISLATION (15)
PG 16 SG
ULTRA VIRES PRINCIPLES:
- common law principle which concerns the validity of managerial acts.
- literally translated it means ‘beyond the legal authority’ , which means that a person acted beyond his her granted legal power
- in this case tha administering of corporal punishment is acting beyond legal powers + may be regarded as invalid.
- Sect 10 of SA schools act 84 of 1996 stipulates :
- no person at a school may administer corporal punishment to a learner
- any person who contravenes subsection (1) is guilty of an offence on conviction, and is liable to a sentence which could be imposed for assault
- the schools act makes it clear that corporal punishment may no longer be used in public +private schools as a means of punishment
- in additions section 12 of the constitution states that everyone has the right not to be punished / treated in a cruel, inhuman / degrading way
- its therefore illegal for any person to apply corporal punishments to any learners at a public / private school
- parents may not give principals / educators persmission to use corporal punishment
- nonformal uses of force (slapping, rough handling) are also prohibited
- principals / educators who ignore this regulation &apply corporal punishment at a school may be charged with assault in a court of law + punished
*COMPULSORY RELIGIOUS OBSERVANCES ARE NOT A LAWFUL OPTION.
EVALUATE THIS STATEMENT AND REFER TO THE SA SCHOOLS ACT 84 OF 1996 (5)
PG 48 SG
- section 7 of the schools act sates that ‘subject to the constitution and any applicable provincial law,religious observances may be conducted at a public school under rules issued by the governing body If such observation are conducted on an equitable basis +attendance at them by learners & members of staff is free + voluntary.”
- this provision is in keeping with section 15 of the constitution which provides for religious freedom
- no learner / educator may discriminated against on religious grounds
- parents may withdraw their children form religious education classes + other religious activities
DISCUSS THE PRINCIPALS RIGHT TO SUSPEND A LEARNERS ACCORDING TO THE:
ULTRA VIRES PRINCIPLE, THE AUDI ALTERAM PARTEM PRINCIPLE AND THE RIGHT TO RELIGIOUS FREEDOM:
PG 39 TUT 102
• if principal dismissed an educator it would be ultra virus(principal is not empowered to do this)
• audi alteram partem (hear the other side)
• … principal didn’t act within limits of her legal authority (ultra virus)
• he has no right to suspend a learner
• SA schools act 84 of 1996, a learner may only be suspended by the governing body + then only after the learner was granted reasonable opportunity to make representations to the governing body in relation to such suspension
• within 7 days of suspension, the governing body must conduct disciplinary proceeding agains the learner
• if these disciplinary proceedings are not conducted with 7 days, the governing body must obtain permission from the HOD for continuation of the suspension
• should It be decided during the disciplinay proceedings that the learner should be expelled, the governing body may extend the suspension for a period not longer than 14 days, pending the decision of the
HOD whether / not to expel the learner
• the principal did not give the learner the opportunity to put her sie of the case & therefore did not adhere to the audi alteram partem principle
• chp 2 of constitution +; section 7 of schools act 84 of 1996 also protect religious freedom
• no learner may be discriminated against on the grounds of his / her religious convictions, conscience, opinion / belief
CHECK #
*DOES THE RIGHT TO RECEIVE EDUCATION IN THE OFFICIAL LANGUAGE OF CHOICE IN PUBLIC EDUCATIONAL INSITUTIONS MEANT THAT EVERYONE HAS TO RECEIVE EDUCATION IN THE LANGUAGE OF HIS / HER CHOICE? (5)
PG 36 SG
- section 29 (2) states that everyone has the right to receive education in the official language / languages of their choice in public educational institutions, where that education is reasonably practicable
- state must take into account: equity, practicability, the need to redress the results of past racially discriminatory laws and practices
** WHAT IS THE PURPOSE OF THE SCHOOLS ACT? (3)
PG 45 SG + PG 42 TUT 102
- provide a uniform system for the organisation, governance + funding of schools
- contains number of important provisions that form the basis on which schools must be managed
- makes provision for democratic school governance
