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CHAPTER 3 THE DUTY OF CARE OF TEACHERS – an overview
Introduction
Schools are to be found in all countries and seemingly, they are all plagued to some extent by the same type of issues in various forms, whether it is bullying, school safety, truancy, poor academic performance, teacher truancy, teacher morale, pastoral care, teachers’ duty of care or low parental involvement. Bhana, Morrell, Epstein and Moletsane (2006:13), mention that problems vary dramatically from school to school, but they discuss specifically theft, alcohol, drug addiction and bullying as the main problems they found in their study. Issues such as the ones brought to the fore are becoming more relevant at present in varying degrees in the public eye, as especially duty of care and pastoral care have received their fair share of publicity due to the negligence of teachers involved with schools.
This in loco parentis aspect places a further legal requirement on teachers in schools to prevent and foresee likely dangers to those learners, by requiring safety measures or policies in schools to prevent injury to the learners (Prinsloo, 2004:6).
This duty of care is clearly spelt out in law in Minister of Education and Another v Wynkwart 2004(3) SA 577, when Mr Wynkwart sued the defendants on behalf of his son who had been injured when he fell and injured himself on an unused, locked gate at the school. Although the court initially found for Wynkwart, the case was successfully overturned on appeal when the judge in the High Court, Judge Desai, found that unreasonable demands cannot be placed on public authorities such as schools. The judge thus felt that the school had taken adequate measures to ensure the safety of the learners.
Prinsloo (2004:5) gives shocking examples of newspaper reports which add further problems to those mentioned in the study above. He gives examples of reports where learners bring weapons to school, the raping of a young learner by other learners, sexual abuse and harassment of girls and cases involving corporal punishment in schools.
Bhana et al. (2006:12) declare that currently there is no provision made in the curriculum for counselling or ministering to the emotional needs of students. Previously, most white and Indian schools had school guidance teachers or counsellors (whereas under-resourced black schools did not). Under the new funding formula for schools, as set out in the National Norms and Standards for School Funding in South Africa (RSA, 1996), provision is made for all schools depending on their own particular circumstances, such as learner numbers, social or community area and so on. No provision is made for the employment of school counsellors over and above the normal staff complement for the school. The provision of such personnel has been severely lacking in historically disadvantaged and small schools. Serious problems are referred to provincial departments, where staff employed in Psychological Services, are on call, but as in most bureaucracies, they are difficult to access. School teachers in many cases are left to handle counselling and other pastoral issues the best way that they can due to the shortage of trained personnel. Bhana et al. find in their conclusion that schools in a less privileged position are faced with huge social concerns thus limiting the extent of the care that can be provided in the school (Bhana et al. 2006:19).
Netshitahame and Van Vollenhoven (2002:317) recommend a number of strategies that could lead to better safety in schools. Among others, providing training for teachers and principals, banning of all manners of intimidation, a zero-tolerance approach to school violence and crime, and insisting that the school management teams and governing bodies set in place procedures of how these matters should be handled in schools. The Government and the Department of Basic Education should ensure this by regular inspections in schools.
The legal obligation of the education department and its employees according to Joubert (2007:117) is thus providing a safe, physical and emotional environment for the learners in a school. However, the role players in schools and the Department of Basic Education may not know how to address these problems, and could try and solve the problem in an unlawful manner, thus bringing in issues of the legal duty not being followed.
Bhana et al. (2006:20) further notes that the care that teachers can give is very basic, and includes limited care such as the provision of clothes, food and services to the learners in their care. They specifically state that few teachers get any recognition for this work that should normally be done by the family or the state’s social welfare sections. They maintain that the state does not provide adequate staff to deal with the challenges of care, nor the training that is so necessary to support the teachers. It is their contention that more recognition needs to be given to teachers providing this care while also stating that professional counsellors need to be employed at schools.
In loco parentis
Generally parents are responsible for the well-being of their children and should ensure that they are not physically or psychologically harmed. According to Joubert (2001:14), teachers take over this obligation from the parents in schools. It is generally considered that teachers have been professionally trained to deal with learners and, as such, they are acting in loco parentis under South African common law. This term means that the teacher is “in place of the parent” (Oosthuizen & De Wet, 2005:66).
The in loco parentis term effectively means that in matters pertaining to the school, the teacher takes the place of the parent, especially as the parent is not present on a daily basis at the school while teaching or various school activities are being performed. This measure ensures that the teacher thus becomes responsible for the safety of the learner while at school. Teachers also need to take note of other legal measures that influence the safety of the learners (Joubert, 2004:145).
According to Oosthuizen and de Wet (2005:66), the in loco parentis duty will entail the right to maintain authority and the obligation to apply caring supervision over the learner. This in loco parentis idea does not mean that the parents can escape their role as the primary caregiver or teacher. They are dependent on the teacher for this role due to their educational skills and training as teachers (Roos, Oosthuizen & Smit, 2009:126). The teacher therefore takes on this parental role while the child is in their care due to the position being delegated to them by the parent, and they must ensure a safe environment for the child. This role is shown diagrammatically as follows by Roos, Oosthuizen and Smit, (2009:126)
The above diagram from Roos, Oosthuizen and Smit (2009:126) clearly stipulates the duties of the teacher as being twofold, that according to them, firstly having the right to maintain authority through fairness and order, and in a peaceful setting, where learning can take place, and secondly, the sense of having to care for the physical and psychological well-being of the learners in his or her care as well as the physical safety of the learners.
Berryman (1998) indicates that in Ontario the law requires teachers to perform various duties from a parental perspective. Some of these include being a positive role model to their learners and having to act as firm and judicious parents. They further indicate that under common law, teachers have a duty of care to protect their learners from all foreseeable risks of injury or harm. The Tasmanian Catholic Education Employees Association (2005) states that the school has “a legal duty of care for its learners arising from the High Court of Australia’s determination that the statutory removal of children from the care and control of their parents for the purposes of educating them together with the need for protection results in a statutory obligation of duty of care in loco parentis.”
Joubert (2008:144-145) suggests that the primary duties of the teacher in loco parentis are to achieve teaching aims, to maintain order by means of the code of conduct and lastly, creating a safe environment for the learners. Joubert further argues that the duty of a teacher comes from many sources, such as the Bill of Rights which ensures that teachers have a duty towards the learners in their care while protecting the rights of people. Other sources that teachers must be aware of are the Constitution and the Children’s Act (RSA, 2005).
The Children’s Act (RSA, 2005) mentions the following duties for teachers:
“(a) safeguarding and promoting the wellbeing of the child
(b) protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional and moral harm or hazards
(c) respecting, protecting, promoting and securing the fulfilment of, and guarding against any infringement of, the child’s rights set out in the Bill of Rights and the principles set out in Chapter 2 of the Constitution
(d) guiding, directing and securing the child’s education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child’s age, maturity and stage of development
(e) guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child’s age, maturity and stage of development
(f) guiding the behaviour of the child in a humane manner
(g) maintaining a sound relationship with the child
(h) accommodating any special needs that the child may have
(i) generally, ensuring that the best interests of the child are the paramount concern in all matters affecting the child.”
The above provisions from the Children’s Act sets out many facets to the duty of care of teachers, from protecting the child from emotional and moral harm, protecting the rights of the child, guiding and advising the child in educational matters and decisions that have to taken by the child as well as maintaining a sound relationship with the child so that the needs and best interests of the child is of primary concern.
These provisions therefore set a far-reaching level of care for teachers than those mentioned previously.
The rights and duties of the teacher, having started out as common law, is to a large extent now dependent on legislation in South Africa such as the South African Schools Act (DoE, 1996), the Employment of Educators Act 76 of 1998 and the South African Council of Educators Act 31 of 2000. (Roos, Oosthuizen & Smit, 2009:127)
There is no certain direction to indicate where this basis of the teacher’s duty of care derives from excepting from common law. Botha, Smit and Oosthuizen (2009:186) point out that several researchers such as Spiro 1971:88 and Conradie (1948:397) differ on the legal basis of this duty of care. However, Botha, Smit and Oosthuizen (2009:186) state that firstly, it derives from the passing on of the duty and authority from the parent to the teacher when the child is at school. Secondly, the teacher has an original duty to the learner regarding the safety of the learner. The difference between the two is that the first indicates that the duty is no different from that of the parent; whereas the second indicates that the duty would be different from that of the parent. Botha et al. cites Conradie (1948:397) who indicates that the duty stems from the parents need to educate their child. This would thus indicate that the teacher has a two-fold duty of care towards the learner.
Joubert, (2008:144) posits that the duty of teachers to look at the safety of their learners has its starting point from many sources, but that the Bill of Rights clearly sets out that teachers must make sure that the rights and safety of the child in schools are protected, and also that teachers and schools must be aware of these rights and other Acts regulating the safety of learners.
Oosthuizen (2005:3), states that the teacher must fulfil his or her duty caringly and see to the physical and spiritual well-being of the learner, as the law expects a teacher who is professionally trained to do this with the necessary skills. He mentions a court case from 1925 where the judge, Judge de Villiers, states in an Appeal court case that the teacher must care for the learner in the same way as the caring head of the family (diligens paterfamilias) would have done in the circumstances. There is a clear indication according to Oosthuizen (2005:3) that some teachers ignore their role of caring supervision in our present education system. He mentions numerous articles and incidents of injury, drug abuse, physical violence, sexual abuse and rape to emphasize this point, and this would indicate that some teachers are not taking their role seriously.
Schouwstra (2009:6) found that just more than 50% of South African teachers had adequate knowledge of aspects of education legislation, while fewer than 50% of them were able to apply this knowledge to practical scenarios. This is extremely worrying, if taking into consideration that teachers are professionally qualified and are expected to show heightened skill in dealing with the learners in their care.
Roos, Oosthuizen and Smit (2009:127) state that although parents are regarded as the primary teachers of learners, all persons acting in loco parentis, such as teachers, have got delegated and original rights and duties in respect of the child’s education. This knowledge that the teacher has about common law principles allow them to create a safe and secure environment of order, routine and protection, which induces a pleasant education and training situation in schools.
Joubert (2008:145) discusses the part played by common law, and states that it places a “legal duty” on the teacher to protect the learner from any danger that might befall the child, as this duty has been handed over to the teacher through the transfer of the parental role by the parent when the child is sent to school. This results in the so-called in loco parentis principle.
Oosthuizen and de Wet (2005:68) mention that a teacher has been professionally schooled to work with learners, and therefore the teacher has the position in loco parentis under South African common law. They mention that the teacher under this principle has the right to maintain authority and the obligation to exercise caring supervision over the learner.
Botha, Smit and Oosthuizen, (2008:187) indicate that many different situations can arise in schools, during school activities, that could lead to legal implications against the school, teacher or school governing body. It is thus important for every teacher and principal to be aware of the general principles relating to the civil legal liability which could arise in these situations.
Role of parents and family
Parents and guardians have certain rights pertaining to their children under South African law. Bray (2005:70) and Botha, Smit and Oosthuizen (2009:186) posit that it is important to note that the parent (and guardian) basically has the duty to care for the child and see to the maintenance of the child. This includes the parental duty to protect his or her child against danger – and that he or she is to take precautionary steps in order to protect the child from danger and to prevent injury to the child.
A study undertaken to look into the performance of latchkey learners (Maphelo, 2006:21) noted that parents are part of the support network and share the responsibility for the instruction that their children receive at schools. Maphelo states that latchkey learners are children who are left at home alone for extended periods and often have to fend for themselves without parental guidance. She cited a study by Mangena (2005:8) who points out that according to him, parents are not involved in their children’s education, and that a lack of discipline and attending to their children’s education add to lax school attendance and poor education results. It is thus crucial that parents get involved in the education of their children and hold the schools and teachers accountable.
Role of teachers
The in loco parentis duty of the teacher clearly sets an important duty on the teacher. When the parent as primary caregiver hands the child over to the school or teacher, the teachers have an essential duty of care towards the learners entrusted to them as they are the caretaker parents. This duty suggests that the teachers have an obligation to “accept responsibility for the safety and wellbeing of the learners” for as long as they are under their care (Joubert, 2008:145). Aspects of the common law and previous cases are therefore used in any court cases to determine to what extent this duty of care is relevant when the need arises.
Prinsloo (2006:312) mentions that the law expects teachers to act as ‘diligens paterfamiliae at all times’ in education situations. The duty of care of a teacher is therefore compared to a diligent father of a family who would act with care towards his family. He also says that teachers have through their duty of care the legal responsibility to protect learners from situations that can crop up in schools.
The special relationship that a teacher has with the learners and the duty to act to ensure their safety are two instances where teachers have obligations towards learners in their care, according to Joubert (2008:145).
Special relationship
Throughout the years, court decisions have established “a common law of the school”, under which the teacher and learners have mutual obligations and responsibilities (Alexander & Alexander, 2005:431). The school is expected to advance the common good of the community. Teachers, therefore, to address the multitude and diversity of the expectations placed on them, must be given a certain leeway to deal with those situations. Teachers therefore have certain control over the learners, control that is not only expected of the teacher by law but also due to the special relationship and obligation that a teacher has of promoting the harmony in a school by ensuring discipline, while also protecting and advancing the interests of the learner. Alexander and Alexander (2005:432) therefore contends that the general law of the school as set up by previous legal decisions reflects a fusion, characterised by the school, where the highest interest of the individual and the interest of the community coincide.
The National Union of Teachers (2003) in the United Kingdom notes that the legal liabilities of teachers derive from three sources. They mention the common law duty of care, the statutory duty of care and the duty arising from the contract of employment as being the sources of the teachers’ liabilities.
Joubert (2008:145) states that a special relationship will be present between groups such as between a teacher and a learner where there is a legal duty and this duty is not upheld. She mentions a court case of an eight-year-old boy who sustained an eye injury, and the court held that the school teacher, like the parents, must exhibit the standard of care that “a reasonably prudent man would observe in the particular circumstances.”
This special relationship (Joubert, 2008:145) exists between parties such as a teacher and a child, as held by the Court in the case between Rusere v the Jesuit Fathers 1970 (4) SA 537 (R). It is mentioned that the school authorities had a duty of care owed to the learners, and were able to take care of them as a careful father would take of his child. Rossouw (2004:35) cites the same case and states that the judge indicated that a definite heightened standard of care is expected from teachers but that these expectations should take reality into account all the time. No superhuman form of supervision can be expected from teachers.
truancy
Dedication
Acknowledgements.
Abstract/summary
Abstrak/opsomming
Key words used in the study
Chapter 1: Introduction and orientation
1.1 Introduction
1.2 Problem statement
1.3 Rationale
1.3.1 Media reports
1.3.2 Court cases
1.4 Research questions
1.4.1 Main question: .
1.4.2 Secondary questions: ..
1.5 Aim and objectives of the research
1.5.1 Aim of the research
1.5.2 Objectives of the research
1.6 Legal framework and clarification of concepts
1.6.1 Constitutional aspects
1.6.1.1 Children’s act
1.6.1.2 Sources of education law
1.6.1.2.1 Legislation
1.6.1.2.2 Common law
1.6.1.2.3 Case law
1.6.2 Clarification of concepts .
1.7 Reseach design
1.7.1 Epistemology
1.7.2 Research paradigm .
1.8 Data collection and analysis
1.8.1 Data collection
1.8.2 Population – sites
1.8.3 Sampling procedure
1.8.3.1 Conducting the interviews
1.8.3.1.1 High Inference Observations
1.8.3.1.2 Interviews
1.8.4 Ethical issues
1.9 Mode of enquiry
1.10 Recording of data
1.11 Validity and reliability
1.12 Relevance
1.13 Division of chapters
1.14 Conclusion
Chapter 2: Legal framework for interpreting the duty of care
2.1 Introduction
2.2 Constitution of the Republic of South Africa, 1996 (hereafter Constitution)
2.3 Legislation applicable to education
2.4 Substantive law
2.5 Public law
2.6 Procedural law
2.7 Common law
2.8 Case law
2.9 Subordinate legislation
2.10 Conclusion
Chapter 3: The duty of care of teachers – An overview
3.1 Introduction
3.2 Legal duty of care
3.3 Professional duty of care
3.4 Pastoral care
3.5 How pastoral care functions in schools
3.6 Pastoral care policies and their importance
3.7 Role of the school in the care of the learner
3.8 Conclusion
Chapter 4: Learner truancy – An overview
4.1. Introduction
4.2 Brief history of truancy
4.3 Types of truancy
4.4 Reasons for truancy
4.5 Interventions to manage truancy
4.6 Conclusion
Chapter 5: Research design and methodology
5.1 Introduction
5.2 Research design
5.3 Research methods
5.4 Analysis of qualitative data
5.5 Triangulation
5.6 Limitations of the study
5.8 Conclusion
Chapter 6: Discussion of findings
6.1 Introduction
6.2 Background information
6.3 Profile of schools
6.4 Analysis and interpretation of data
6.5 Conclusion
Chapter 7: Conclusions and recommendations
7.1 Introduction
7.2 Summary of the study
7.3 Overview of the problem .
7.4 Concluding remarks
7.5 Contribution to the body of knowledge
7.6 Communication as a method of dealing with legal aspects
7.7 Conclusion
7.8 Recommendations
7.9 Recommendations for future research
References
Annexures
