This research builds on and contributes to work in the field of educators' professional discretion and the prevention of negligence. Existing literature suggests that many educators are still unaware of how the law operates regarding policy requirements and their in loco parentis obligations. This is demonstrated by the number of litigations and how an educator's liability regarding negligence has grown. In South Africa, numerous authors have made contributions in relation to learner safety and educators' duty of care. An educator is tasked with duty of care and to use professional discretion appropriately. At the same time, educators should be mindful to minimise their exposure to lawsuits. However, not much appears to have been done in this country to establish how educators can maintain a respectable balance between professional discretion and policy requirements without being negligent. The purpose of this study was, thus primarily to explore ways in which educators can reconcile professional discretion and legal and policy requirements to prevent negligence. The study utilised a qualitative research approach underpinned by an interpretive paradigm. Data collection was done by the means of qualitative collection techniques, namely semi-structured interviews supported by an analysis of relevant court cases. Twenty participants from two primary and two secondary public schools in the Tshwane South school district in Gauteng participated in the study. Two of these schools were fee-paying schools and two non-fee-paying schools. Five participants from each school were identified and invited to participate in this study and consisted of the principal, a member of the school management team (deputy-principal or head of department) and three educators. Each of the participants had different legal obligations, discretions, responsibilities and accountabilities as far as negligence is concerned. The conceptual framework for this study, was based on Dworkin’s (1978:31) ‘doughnut’ metaphor for the concept of professional discretion. Based on an adapted version of Dworkin’s ‘doughnut’ metaphor, findings confirm that some educators feel restricted in their decision-making and limited in their professional discretion due to the legal and inflexible policy framework regulating their work. It came to the fore that the understanding and interpretation of certain school policies were dealt with differently by the participants due to their varied levels of experience, knowledge and training. The findings illuminated the fact that the participants did not fully grasp the vii concept of professional discretion. In making decisions and exercising judgement, these participants may not be comfortable in their knowledge experience or personal intuition. Educators’ capacity and ability to apply discretion is influenced by a number of external and internal factors. These factors restrict an educators’ autonomy space, which could ultimately lead to the inability to apply appropriate discretion. This could lead to a form of paralysis to uphold a high standard of care in dire situations and could lead to negligence. Therefore, in order to achieve a high standard of care and not be negligent, educators should not only have the ability to apply appropriate discretion, but also have the freedom to do so. Key terms: professional discretion; duty of care; in loco parentis; negligence; law of delict; standard of care; school safety policies. / Dissertation (MEd)--University of Pretoria, 2020. / DST-NRF Innovation Master’s Scholarship. UNIQUE GRANT NO: 117504 / Education Management and Policy Studies / MEd / Unrestricted

According to legislation, common law and case law, South African educators have a responsibility to ensure the safety of learners. Above all, God has placed children in our care and it is our God-given duty to take care of them. For educators to be able to perform this duty of care as it should be, they need to be equipped with the necessary legal knowledge. However, the acquisition of this knowledge remains the primary responsibility of each educator. Other educational role-players also have some moral obligation and responsibility to assist educators in attaining such knowledge. As educators should acquaint themselves with the relevant legislation regarding duty of care, such legislation should be accessible to all educators. Principals should encourage educators to become acquainted with the content of the relevant education laws. All the determinants regarding duty of care ought to be general knowledge to educators. Principles such as what torts comprise of, the requirements of delictual accountability, reasonable foreseeability and preventability and the reasonable educator test should be as well-known as subject didactical knowledge. Real-life situations and case law should be used to ensure a clear understanding of these principles. Tendencies in international law should also be communicated to educators. This study determined that educators do not have sound legal knowledge to meet the minimum requirements set by legislation, common law and case law. Tertiary institutions will have to compile training programs urgently so that education departments, trade unions, governing bodies and principals can make it available to educators, who, in turn can empower themselves with relevant, practical education law knowledge. / Thesis (M.Ed.)--North-West University, Potchefstroom Campus, 2006.

Thesis (M.Ed.)--North-West University, Potchefstroom Campus, 2006.

The purpose of this study was to describe how the doctrine of in loco parentis was operationalized at the University of Tennessee during the early 1920s and 1930s, through analysis of the minutes of the University of Tennessee Administrative Council, the administrative body charged with the major decisions concerning student life for the University. The phenomenon under examination in this single, descriptive, holistic case study design was the operationalization of the concept of in loco parentis, and the case was the University of Tennessee during the early 1920s and 1930s. The study identified the various issues with which the Administrative Council dealt in the early 1920s and 1930s, as well as outcomes of the various issues before the Council. The findings revealed that the University practiced standing in the place of students’ parents in various ways, including: a comprehensive class attendance policy and monitoring of class attendance; substantial monitoring and oversight of academic progress; mandated attendance at a religious chapel program; restrictions on travel outside Knoxville while classes were in session; regulation of social dancing; visitation and curfew restrictions in residential facilities for women; lecturing and verbal reprimanding of students who appeared before the Council; serving as a permission-granting or permission-denying body for various and sundry requests; disciplining of students for vague, non-specific matters of non-academic student misconduct; and extensive use of student probation and the associated restrictions which accompanied probation. As the first study to document the way in which the doctrine of in loco parentis was operationalized from an administrative perspective, the findings add significantly to the existing literature and to our understanding of the relationship between the student and the institution in the early part of the twentieth century.

In loco parentis, or “in place of the parent,” was the model that formerly governed the relationship between student and university. Student behavior on campus was closely monitored, as if each pupil were the son or daughter of the dean. The university was granted power to regulate the lives of its students closely, but was also charged with responsibility for their welfare. The cultural revolution of the 1960s changed this. Student rebellions aimed against any and all authority, coupled with judicial interference that severely hindered the university’s capacity to act as parent, effectively killed off the doctrine of in loco parentis. Now the relationship between university and student more closely resembles that of landlord and tenant. These phenomena have coincided with the rise of the “campus rape epidemic,” or the notion that roughly 20 percent of women will be sexually assaulted during their college years. By comparing the sexual assault rate at schools that continue to practice in loco parentis to those that do not, this report will show that a return to the doctrine of university as parent can solve the problem of sexual assault on college campuses. In a survey of 657 colleges and universities around the nation, this paper will demonstrate that the sexual assault rate is lower at schools that attempt to regulate the lives of their students, such as with regard to alcohol and living arrangements. This is, in a sense, to state the obvious – or, at least, what was once obvious. Alcohol is involved in over half of all sexual assaults on campus, and 90 percent of sexual assaults occur in dorm rooms. By reducing the availability of alcohol on campus and by limiting the residence interactions between the sexes, the university can put an end to the campus rape epidemic.

According to legislation, common law and case law, South African educators have a responsibility to ensure the safety of learners. Above all, God has placed children in our care and it is our God-given duty to take care of them. For educators to be able to perform this duty of care as it should be, they need to be equipped with the necessary legal knowledge. However, the acquisition of this knowledge remains the primary responsibility of each educator. Other educational role-players also have some moral obligation and responsibility to assist educators in attaining such knowledge. As educators should acquaint themselves with the relevant legislation regarding duty of care, such legislation should be accessible to all educators. Principals should encourage educators to become acquainted with the content of the relevant education laws. All the determinants regarding duty of care ought to be general knowledge to educators. Principles such as what torts comprise of, the requirements of delictual accountability, reasonable foreseeability and preventability and the reasonable educator test should be as well-known as subject didactical knowledge. Real-life situations and case law should be used to ensure a clear understanding of these principles. Tendencies in international law should also be communicated to educators. This study determined that educators do not have sound legal knowledge to meet the minimum requirements set by legislation, common law and case law. Tertiary institutions will have to compile training programs urgently so that education departments, trade unions, governing bodies and principals can make it available to educators, who, in turn can empower themselves with relevant, practical education law knowledge. / Thesis (M.Ed.)--North-West University, Potchefstroom Campus, 2006.

Published Article / This research study explores how black male student teachers in their final fourth year programme at the University of Technology conceptualise the 'in loco parentis' aspect of their professional moulding. Male student teachers in their final fourth year studies are placed for a period of six months at various schools, as part of their professional preparation. Based on this phenomenon it has become important to explore how they perceive their position as male teachers in preparation against the delegated position invested in them by common law, as well as legal positive law. The researcher used the Critical Emancipatory Research (CER) approach as a transformative and liberatory mechanism to move away from the problems that are associated with being a male teacher and the abuse of power directed at learners in their care. A critical discourse analysis (CDA) was used to analyse the narratives of ten black male student teachers through in-depth interviews that were audio-taped. The ten male student teachers were based in different secondary schools in the Lejweleputswa district.

Teachers are the motivating force and role models for many learners in our schools around the country. They take on the role of teacher, parent, diplomat, doctor, police officer, confidant, nanny, disciplinarian and moral compass, among other roles. They are vilified and slated in our media and are often the scapegoats for perceived ills, real or otherwise, found in our schools, to the detriment of the image of the profession. This is especially true where teachers and schools do not have a clear direction and clarity on what their duty of care is as regards truancy, safety and the pastoral role towards learners in our schools. Legislation provides a legal framework for this study, starting with the Constitution of the Republic of South Africa, and the legal dimensions include the Bill of Rights, various legislative Acts, common law and case law, with terms such as the in loco parentis principle also included, which govern the teacher’s duty of care for learners. The duty of care places an obligation on the teacher in a legal sense through the duty imposed by law, and in the professional sense through the expectation placed on the teacher through the employment contract that the teacher has with the Department of Basic Education. The literature suggests that truancy of learners has many causes and that teachers could be a contributing factor to the causes. Several contributions have been made regarding safety and discipline of learners in schools in South Africa. However, not much appears to have been done in this country to determine the causes of truancy and whether teachers have an influence on its occurrence in schools. The relevant literature further suggests that the social aspects that influence truancy are not clear. The question arises whether teachers should interrogate the social aspects to determine their influence on a case of truancy. The purpose of this study was therefore to determine the legal interpretation of the teachers’ duty of care with regard to truancy of learners. A qualitative approach was used for the study. Semi-structured interviews were conducted at schools and with a lawyer and a judge to determine how they view this duty of care in schools, whether pastoral care is practised, and if teachers realise the extent of the law as regards negligence, and their duty as regards truancy especially. The interpretive paradigm would, through the semi-structured interviews, reveal how schools view the duty of care and pastoral care, as well as truancy in schools. The main causes and the extent of truancy in schools, the guidance and support that teachers can expect from the Department of Education to fulfil the seven duties or roles that are expected from teachers in the National Education Policy Act (1996), as well as the common-law duty of in loco parentis, would become clearer. The interviews provided data that no person is above the law and that ignorance of the law is no excuse. The study could be helpful to schools, the Department of Education and universities that train teachers, to include more training on specific issues and case studies involving education law and the duties of teachers, from both a legal and a professional perspective. The Department of Basic Education could find it helpful in monitoring and control at schools about matters involving discipline, safety and care of learners, and the duties of teachers at schools. Although teachers may know something about the duty of care or have heard about it, they are in the dark regarding the interpretation of the legal requirements and the repercussions that could flow from that duty. The second conclusion is that pastoral care appears to be doing well in schools although teachers are under pressure with the implementation of the new syllabus. The third conclusion is that truancy is rife in high schools and that two of the causes, drugs and pregnancy, are chiefly to blame for it and must be addressed. Fourthly, the social structure and the environment in the family should be looked into to try to reduce truancy. The study provides a legal interpretation of the teacher’s duty of care owed to learners, specifically regarding truancy and its causes. It will mean making a contribution to the body of knowledge that will include, but not be limited to, the insight gained by a look into the life world of the teacher regarding learner truancy, as well as taking a factual journey through the courts, discussing cases brought before them. # Onderwysers dien as rolmodelle en bron van motivering vir baie leerders in ons skole landwyd. Hulle vervul die rol van onderwyser, ouer, diplomaat, dokter, polisiebeampte, vertroueling, kinderoppasser, tugmeester en morele kompas, om maar ʼn paar te noem. Hulle word dikwels in die media swart gesmeer, gekritiseer en as sondebokke voorgehou vir gewaande of werklike ongerymdhede wat in ons skole plaasvind, baie keer tot nadeel van die beeld van die beroep. Dit kom veral voor wanneer onderwysers en skole nie duidelike leiding het oor wat hulle sorgsaamheidsplig is rakende stokkiesdraai, veiligheid en hul pastorale rol teenoor leerders in ons skole nie. Wetgewing voorsien ʼn regsraamwerk vir hierdie studie. Dit begin by die Grondwet van die Republiek van Suid Afrika wat die Handves van Menseregte omvat, en sluit in verskillende ander wette sowel as die gemene en regspraak. Die wetgewing inkorporeer konsepte soos die in loco parentisbeginsel, wat die sorgsaamheidsplig van onderwysers jeens leerders omskryf. Die sorgsaamheidsplig plaas ‘n regsverpligting op die onderwyser kragtens die wetgewing, tesame met die beroepsvereistes van die dienskontrak met die Departement van Basiese Onderwys. Die literatuur dui daarop dat daar talle redes is waarom leerders stokkies draai en dat onderwysers moontlik ‘n bydraende faktor kan wees. Verskeie bydraes is gelewer ten opsigte van die veiligheid en dissipline van leerders in skole in Suid-Afrika. Dit wil egter voorkom asof daar nog nie veel in die land nagevors is om die oorsake van stokkiesdraaiery te bepaal en of onderwysers ‘n invloed op die voorkoms daarvan in skole het nie. Die betrokke literatuur dui verder daarop dat die sosiale aspekte wat stokkiesdraaiery beїnvloed, nie duidelik is nie. Die vraag ontstaan nou of onderwysers sosiale aspekte moet ondersoek om hulle invloed op ‘n stokkiesdraai-geval te bepaal. Die doel van die studie was om die wetlike interpretasie van die sorgsaamheidsplig van onderwysers teenoor leerders wat stokkiesdraai, te ondersoek. ‘n Kwalitatiewe benadering is gebruik vir hierdie studie. Semi-gestruktureerde onderhoude is gevoer by skole en met ‘n regsgeleerde en ‘n regter om te bepaal wat hulle opvatting van die sorgsaamheidsplig in skole is, of pastorale sorg toegepas word en of onderwysers besef wat is die omvang van die wet ten opsigte van nalatigheid en spesifiek hulle plig ten opsigte van stokkiesdraaiery. Hierdie interpretatiewe paradigma bepaal, deur middel van die semi-gestruktureerde onderhoude, wat skole se opvattings van die sorgsaamheidsplig en pastorale sorg is, en ook jeens stokkiesdraaiery in skole. Dit kan ook lig werp op watter leiding en ondersteuning onderwysers van die Onderwysdepartement kan verwag om die sewe pligte of rolle van onderwysers wat in die Wet op Nasionale Onderwysbeleid (1996) omskryf word, te kan vervul, asook die gemeneregsplig van in loco parentis. Die onderhoude lewer ook data op wat aantoon dat geen mens bo die reg verhewe is nie en dat onkunde aangaande die reg nie ‘n verskoning is nie. Hierdie studie behoort nuttig te wees vir skole, die Onderwysdepartement en universiteite wat onderwysers oplei, om meer opleiding te verskaf oor spesifieke aspekte en gevallestudies aangaande onderwysreg en die pligte van opvoeders vanuit beide ʼn regsoogpunt en ʼn professionele oogpunt. Die Departement van Basiese Onderwys kan dit nuttig vind in monitering en beheer by skole met betrekking tot dissipline, veiligheid en sorg van leerders, en die pligte van onderwysers by skole. Dit blyk dat, alhoewel onderwysers moontlik iets weet of al gehoor het van die sorgsaamheidsplig, hulle min weet van die wetlike vereiste en die uitwerking daarvan op die plig. Die tweede gevolgtrekking is dat pastorale sorg in skole oënskynlik goed toegepas word alhoewel onderwysers onder druk verkeer met die uitvoering van die nuwe kurrikulum. Die derde gevolgtrekking is dat stokkiesdraaiery algemeen voorkom in die hoërskool en dat dwelms en swangerskap twee hoofoorsake is wat aandag moet kry. Vierdens, moet die sosiale struktuur en die gesinsomgewing ondersoek word om stokkiesdraaiery te probeer verminder. Hierdie studie verskaf ‘n wetlike vertolking van die sorgsaamheidsplig van onderwysers teenoor leerders, spesifiek rakende stokkiesdraai en die oorsake daarvan. Dit lewer ook ‘n bydrae tot die korpus van kennis, onder meer oor die insigte wat die ondersoek verleen in die lewenswêreld van die onderwyser teenoor leerders wat stokkies draai. Ten slotte onderneem dit ‘n feitlike reis deur sommige hofsake oor hierdie kwessie. / Thesis (PhD)--University of Pretoria, 2013. / lk2014 / Education Management and Policy Studies / PhD / Unrestricted

In the recent past South Africa saw an increase in participation in school sport concomitant with an increase in litigation awareness in society. Legal accountability based on damage suffered in the participation in sport has become more common, introducing an additional dimension to risk management by the educator. Learner safety is one of the key aspects in a school. Educator accountability with regard to the safety of learners in school sports is a focus of attention. An effective risk management programme to limit injuries and risks to participants in school sports must be developed. Risk management is the prime instrument by which injuries and the potential exposure of the educator or school to damage and legal accountability can be reduced or prevented. Some aspects of legal risk management are crucial for the educator's duty of care during coaching and the educator's legal duty with regard to the participants' safety. The educator must possess enough legal knowledge to successfully carry out his duty of care. This research will critically assess the safety strategies and the legal risk management of participation in school sports in South Africa. To be able to do this, I determined which common-law and legally accountable determinants can be applicable and what role they will play to ensure the safety of learners in schools. Firstly a literature study in legal risk management in school sports was done. This study found that the educator's responsibilities and obligations are determined by common-law and case law determinants. An empirical investigation was launched. Interviews were conducted with educators involved in sports in the Dr Kenneth Kaunda district of the North-West Province. The topic was the current state of affairs in risk management in school sport. The participants' perceptions of legal risk management were discussed and their views analysed, whereupon findings and recommendations were made. The general impression based on the results was that the educators experience huge uncertainty and are seriously uninformed about with regard to delictual liability towards learners under their care. It was found that educators do not have sufficient legal knowledge to comply with the requirements set by law. Therefore the security of the participants (on grounds of their participation) and the educators (on grounds of their legal accountability) is jeopardised. It is recommended that all tertiary institutions develop training programmes to empower educators and student educators with knowledge of legal procedures in education. It is further recommended that the education department as employer together with governing bodies, principals and trade unions support such training programmes- now and in the future. Finally, educators, school management teams and governing bodies should be more risk-aware and more pro-active in preventing sport-related injuries, because of the ignorance regarding guidelines for risk management in sports and standards of security. The complex nature of our society makes knowledge of the legal aspects in education by all role players in education not only desirable, but mandatory. / MEd (Education Law), North-West University, Potchefstroom Campus, 2012

In the recent past South Africa saw an increase in participation in school sport concomitant with an increase in litigation awareness in society. Legal accountability based on damage suffered in the participation in sport has become more common, introducing an additional dimension to risk management by the educator. Learner safety is one of the key aspects in a school. Educator accountability with regard to the safety of learners in school sports is a focus of attention. An effective risk management programme to limit injuries and risks to participants in school sports must be developed. Risk management is the prime instrument by which injuries and the potential exposure of the educator or school to damage and legal accountability can be reduced or prevented. Some aspects of legal risk management are crucial for the educator's duty of care during coaching and the educator's legal duty with regard to the participants' safety. The educator must possess enough legal knowledge to successfully carry out his duty of care. This research will critically assess the safety strategies and the legal risk management of participation in school sports in South Africa. To be able to do this, I determined which common-law and legally accountable determinants can be applicable and what role they will play to ensure the safety of learners in schools. Firstly a literature study in legal risk management in school sports was done. This study found that the educator's responsibilities and obligations are determined by common-law and case law determinants. An empirical investigation was launched. Interviews were conducted with educators involved in sports in the Dr Kenneth Kaunda district of the North-West Province. The topic was the current state of affairs in risk management in school sport. The participants' perceptions of legal risk management were discussed and their views analysed, whereupon findings and recommendations were made. The general impression based on the results was that the educators experience huge uncertainty and are seriously uninformed about with regard to delictual liability towards learners under their care. It was found that educators do not have sufficient legal knowledge to comply with the requirements set by law. Therefore the security of the participants (on grounds of their participation) and the educators (on grounds of their legal accountability) is jeopardised. It is recommended that all tertiary institutions develop training programmes to empower educators and student educators with knowledge of legal procedures in education. It is further recommended that the education department as employer together with governing bodies, principals and trade unions support such training programmes- now and in the future. Finally, educators, school management teams and governing bodies should be more risk-aware and more pro-active in preventing sport-related injuries, because of the ignorance regarding guidelines for risk management in sports and standards of security. The complex nature of our society makes knowledge of the legal aspects in education by all role players in education not only desirable, but mandatory. / MEd (Education Law), North-West University, Potchefstroom Campus, 2012