School Safety and the Law

Different perspectives on school safety

Educational perspective

Psychological perspective

Organisational perspective

Legal perspective

The Rule of Law

• We live in and by the law

• The law makes us what we are: husbands, wives, principals, educators, heads of department, deputy principals, governing body members and learners

• We are subjects of law's empire, loyal servants to its methods and ideals, bound in spirit while we debate what we must therefore do (Dworkin, 1986: Preface).

• The rule of law is a double-edged sword

Legal perspective on school safety

• The Constitution of the RSA, 1996 determines that:

• Schools are legally obliged to protect the rights of learners to a safe and healthy environment.

• Everyone has the right to safety and security

• Everyone has the right to privacy

• Everyone has the right to human dignity

• Children have the right to protected from maltreatment, neglect, abuse or degradation

Legislation

• South African Schools Act, Act 84 of 1996 as amended: Sections 8, 8A, 9, 60.

• Regulations: – Safety Measures at public and independent schools.

– To prohibit initiation practices

• Employment of Educators Act, 1998 – PAM

• Promotion of Administrative Justice Act (PAJA)

• 2000

What do we learn from case judgments

TM Jacobs v The Chairman of the SGB of Rhodes High & others (2010)

• The facts of the case

• The school: Rhodes High School

• The learner: Bheki Kunene

• His teacher: Tania Jacobs

• The offence: hitting the teacher with a hammer in the classroom in the presence of his classmates

• The principal, Mr Keith Long

• The school counselor

• The SGB of the school

Legal questions answered in this case

1. Was there a legal duty to take reasonable steps to ensure that the teacher was not harmed by the learner, and if so whether the school breached that duty

2. Was the school negligent and was there a causal connection between the negligence and the damage suffered

3. Was the damage suffered a consequence of the wrongful and negligent action

Legal duty to prevent harm

Structure of government Legislature Parliament Makes law by passing legislation Who is the parliament of a school?

Executive President and cabinet ministers govern country according to law Who is the executive of a school?

Judiciary All the courts in SA Resolves disputes by determining what the law says Who is the judiciary at a school?

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Legislation How acts are made:

• Green paper, White paper, Bill Act

• Amendments to legislation

• What is not legislation?

– White Papers

– Reports

– Draft Bills

– Policies

– Circulars

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Duty to care

Legal duty to prevent harm

• Determined by Constitution • Everyone has the right to life, dignity &

freedom and security, safe environment • Schools Act, section 8A : drugs and weapons • Regulations for School Safety • Code of Conduct of a school • Common law

– Diligens paterfamilias – In loco parentis – Duty to care (principal, HOD, educator)

Diligens paterfamilias

Negligence

• Negligence – the conduct falls short of the standard of the reasonable person.

• Required to foresee the possibility of harm and take action to guard against the harm. Consider the acts/omissions of person responsible

• Reasonably foresee possible harm prior to incident

• Reasonably foresee harm on the day of the incident

Wrongfulness

• Causal connection between negligence and the harm

• Factual inquiry to determine liability

• Question: Did the negligence cause the harm?

• If so, legal inquiry: is the wrongful action linked sufficiently closely to the harm for legal liability?

• Questions based on reasonableness, fairness and justice

Lessons to learn from the case

• Legal duty to prevent harm

• Reasonableness of conduct

• Principals act on behalf of the State (school a organ of state)

• Principal not SGB accountable for safety – powers of enforcement and responsibilities

• Negligence – intentional acts or omission to act

• Apportionment of Damages (MEC, principal, teacher)

Legal duty of care

• Educators act in loco parentis

• Accept responsibility for safety and well-being of learners when they are in their care

• In loco parentis: Time and place

• Original and delegated duty

• Duty to provide a safe and secure school environment

The problem?

• May a school principal search a learner’s bag, locker, pockets, jacket, other clothes, shoes, socks, body for dangerous objects and or drugs and may the principal test the learners’ urine for drugs?

• What does the words ‘search and seizure’ mean?

• How to balance a learner’s constitutional right to privacy against the need of the school to maintain order and discipline and to protect the health and safety of all learners 20

SA Schools Act, Sec 8A

• No person may bring a dangerous object or illegal drug onto school premises or have such object or drug in his/her possession on school premises or during any school activity

• The principal or his/her delegate may, at random, search any group of learners, or the property of a group of learners, for any dangerous object or illegal drug, if a fair and reasonable suspicion has been established

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Search and seizure

• In the South African legal context, the terms search and seizure are not clearly defined

• Search: “Any act whereby a person, container or premises is visually or physically examined with the object of establishing whether an article is in, on or upon such person, container or premises”

• ‘Seize' encompasses not only the act of taking possession of an article, but also the subsequent detention thereof

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Objective standard

• Legislation (2007) allows schools to search for drugs when there is "fair and reasonable suspicion"

• The safeguards against an unjustified interference with the right to privacy :

– reasonable grounds to believe that an offence has been or is likely to be committed

– that the articles sought or seized may provide evidence of an offence

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Guidelines for searches

• Searches must be conducted in a manner that is reasonable and proportional to the suspected illegal activity

• Drug testing emphasised

• The Minister has identified 10 devices and a school may use

• Clear guidelines are prescribed for the drug testing procedure

• No criminal procedure may be instituted against a learner who tested positive for drugs

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The Regulations for Safety Measures at Public Schools (2001) as amended in 2006

• Violence and substance abuse in schools

• Access to schools and visitors to schools

• Organisation of school activities, including the transport of learners

• Physical activities

• Emergency and fire procedures

• Early release of learners from school

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Specific responsibilities of the educator with regard to learner safety

• An effective safety programme

• Occupational Health and Safety Act (Act 85 of 1993)

• In the classroom

• In workshops and craft centres

• In the playground or school grounds

• Bullying and peer victimisation

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Specific responsibilities

• School sport

• Transportation of learners

• Medical treatment

• Electricity

• Construction, renovation and repair of school facilities

• Child abuse and molestation

• Aspects of the law relating to HIV/Aids

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SAFETY POLICY

HOW TO DEVELOP A SAFETY POLICY

PREAMBLE

• The purpose of the policy and how it fits into the mission and vision of the school.

• The various Acts that influence the policy

• Occupational health and safety Act (No.85/1993)

• South African School’s Act (No.84/1996)

• The Regulations for safety measures at Public Schools (2001) as amended in 2006.

DUTIES OF THE SCHOOL

• Written safety policy

• Maintain a safe, risk free environment for staff and learners

• Each educator should take reasonable care in terms of his/her actions to act or Not to act.

• Unsafe conditions must be immediately identified.

• Each educator must carry out a legal instruction.

IN THE CLASSROOM • Learners left alone in the classroom.

• Principals should refrain from calling educators to the office.

• No meetings should be held during school hours.

• In the classroom educator should provide sufficient supervision.

IN WORKSHOPS AND CRAFT CENTRES

• Section 14 of the Occupational Health and Safety Act – safety in workshops and centres.

• Use of machinery and equipment

• Safety measures in centres

• Instructions on the use of machines.

• Safety equipment.

• Use and tampering of fire extinguishers.

Infectious illnesses

• Outbreaks of infectious illnesses such as Measles, German measles, Chicken Pox, Whooping Cough and Mumps amongst learners and staff will be reported to the relevant Health authority. The learner and or the staff will not return to school before the quarantine period has lapsed. The parents of learners at the school will be informed of the outbreak and the necessary steps taken to avoid further infections. The SGB will run campaigns together with the relevant Health authority to have learners immunised to prevent infectious illnesses.

HIV/Aids

• HIV/Aids – the basis for advocating the consistent application of universal precautions lies in the assumption that in the situation of potential exposure to HIV, all persons are potentially infected and all blood spills should be treated as such. All blood spills, open wounds, sores, breaks in the skin grazes and open skin lesions as well as all body fluids and excretions must be treated as potentially infectious.

• No learner, educator or staff member is compelled to

disclose his or her HIV/Aids status to the school or institution or employer. Unauthorised disclosure of HIV/Aids related information with regard to learners, educators or staff could give rise to legal liability.

First Aid

• First Aid – training of learners and staff in First Aid is essential. The SGB will make funding available to train and upgrade the First Aid qualifications of the staff at the school. There will be at least four level 3 First Aid trained educators at the school.

First Aid Kits

• First Aid Kits – the SGB will purchase these from funds made available for the purpose of purchasing First Aid Kits and replenish stocks on an ongoing basis. The SGB must ensure that the appropriately trained First Aiders are available at all events and activities at the school, together with fully equipped First Aid Kits. School excursions will be undertaken only if the appropriately trained First Aiders accompany learners together with equipped First Aid Kits.

Extra-mural activities

• Extra-mural activities such as rugby and other high risk sports will have the appropriately trained First Aiders present together with items such as First Aid Kits as well as back boards and neck braces.

• The SGB will undertake to furnish the educators accompanying the learners on school excursions, activities or sporting events with a cell phone to make emergency calls.

Insurance

• The SGB should make funds available for the

purpose in the Budget to take out the necessary third party liability cover necessary to cover learners, educators and staff at the school or learners on official school excursions and school activities.

Incidents report

• The sub-committee will keep a record of any incidents involving injury to visitors, learners, educators or staff at the school or during any excursion or school activity.

School vehicles

• School vehicles such as kombis and cars will be kept in a roadworthy condition with tyres and brakes being regularly checked for compliance. Driving of the vehicles will be undertaken by persons with a valid driver’s licence. Kombis used to transport learners will be driven by persons with a valid public drivers licence.

Hired Transport

• The SGB must ensure that buses hired for transporting learners to school activities are hired from reputable companies with drivers in possession of the necessary valid public licences. The buses must be roadworthy and the brakes and tyres must comply with the set standards.

Buildings and Grounds

• Buildings and Grounds sub-committee must

constantly monitor the implementation of the Policy at the school.

Computer Rooms

• Computer Rooms will be serviced by the

necessary IT specialist contracted by the SGB. Any electrical installations will be carried out by a qualified electrician.

Science Laboratory

• Science Laboratory educators must keep a

hazardous substance register. An Incidents Register must be kept and reported on regularly. The fume cupboard must be kept in line with the required safety procedures.

Fire Extinguishers

• Fire Extinguishers must be checked and

replaced on a regular basis. The training programme of the staff involved in the fire fighting programme at the school will be funded from funds identified in the Budget.

Safety equipment

• Safety equipment such as safety boots, eye

wear and overalls must be supplied out of the funds made available to all State and school employees working with lawnmowers or cutting equipment.

Evacuation Plan

• Evacuation Plan for learners and staff at the

school must be in place and from time to time practice sessions will take place under the authority of the Principal. Safe zones will be identified so that learners and staff can safely assemble and be evacuated.

Electrical fittings

• Electrical fittings, wiring, plugs and light fittings in the building and classrooms will be regularly checked by a qualified electrician to ensure that there are no loose wires or faulty connections. A qualified electrician will be contracted to do any electrical installations or repairs.

Hygienic conditions

• Hygienic conditions in the toilets, kitchen, ladies sanitation bins and tuck shop will comply with set standards. These areas will be sanitized and cleaned regularly by cleaning staff under the supervision of the Principal.

Safety conditions

• Safety conditions of the handrails, tiles on the

steps, gutters, paving and any other areas will be regularly checked.

Playing fields

• Playing fields - the rugby/soccer goal posts,

netball courts, tennis courts, spectator stands will be regularly checked for wear and tear.

Swimming pool

• Swimming pool fences will be regularly

checked and the gates kept locked and opened only by the educator (s) responsible during such activities.

GENERAL SUPERVISION OF LEARNERS

ON SCHOOL PREMISES – The SGB and the staff:

• will draw up safety plans for the safety of learners entering the school prior to the morning school bell and after the end of the school day or activities.

• will have a safety plan for the learners during their breaks where educators will supervise.

• Learners leaving school early will be signed out by the person responsible for their collection. The register must be monitored by the Principal.

Wynkwart NO v Minister of Education and Another 2004 (3) SA 577

The respondent had instituted action on behalf of his son R who had allegedly been seriously injured when he fell of an unused, locked gate at his school.

The Court:

Held that the degree of supervision to be exercised in particular case would depend upon a great variety of circumstances and found in favour of the respondents. Whereupon the appellants appealed against the decision.

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The Appeal

The question for consideration was whether the defendants were liable for injuries sustained by R.

What do you think and why?

Group discussion.

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VERDICT

The decision was reversed on appeal. Facts: In Wynkwart, the Court held that the degree of supervision required depended on the risks to which the students were exposed. The implications: The decision in Wynkwart seems to suggest that the duty of cared owed by school goes further than simply holding that there is a duty to warn learners of potential dangers .

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Implications continued

In fact an educator would furthermore also have to ensure that no harm occurs. It would thus be insufficient to warn or educate learners about school safety without taking steps to ensure that no such harm occurs while they are on the school premises. A juristic person (the school) has a duty to act through its organs (educators) to prevent any form of foreseeable harm to learners.

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INDEMNITY Indemnification can exclude liability. Parents/Guardians who indemnify educators (and/or school) from liability effectively waive or limit their rights to recourse, thereby holding the educator (and/or school) harmless for any damages they may suffer.

Such indemnification is normally valid in respect of damage suffered by parents or guardians, but not in respect of damage suffered by learners due to the legal principle that parents or guardians may not act to their children’s detriment.

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INDEMNITY

A waiver of a right to claim against damages signed by parents example: medical expenses resulting from the injury. However, cases where the learner suffers a personal injury, such as amputation of a limb, the parents are not entitled to waive the right to claim damages for the loss of limbs on behalf of the learner. A parent can not sign away the rights of the learner. No school should make parents sign indemnities against negligence. Which means an educator can be negligent in his/her duties and thus parents can’t claim for damages/sue.

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CASE STUDY

In Minister of Education and Culture (HOD) v Azel and Another, the facts were as follows. In view of a subject related field trip organised by an educator at Laudium High School, Ms Azel signed the following indemnification form:

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Sample of LHS Indemnity form

I fully understand that and accept that all tours and excursions shall be undertaken at my child’s own risk and I undertake on behalf of myself, my executors and my child aforesaid to indemnify, hold harmless and absolve the department, the principal and his staff (of the school attended by the minor) against and from all claims whatsoever that may arise in connection with any loss or damage to the property or injury of the person of my child aforesaid in the course of such tour or excursion, in the knowledge that the principal and his staff will, nevertheless, take all reasonable precautions for the safety and welfare of my child.

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COURT DECISION

In the matter of Azel , the common law principle that parents may not act (e.g consent to a disclaimer) to the detriment of the child was confirmed. This implies that although a learner’s parents had signed an indemnity form, this indemnity will not have any legal effect on a child’s personal claim for damages.

Section 13 of the Prescription Act (Act of 1969) (SA1969) contains the following:

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13. Completion of prescriptions delayed in certain circumstances.

This means that, on obtaining majority, minors (i,e. injured learners) will have one year to claim for personal damages incurred as a result of negligence by an educator or the school.

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SIGNING OF POLICY

• This Policy accepted after due consideration by the SGB on xxxxxx 2010 at xxxxxxxxx

• Chairperson of the SGB: ___________

• Date: ________

• The Principal: _____________

• Date: ________

• IDSO: _________________

• Date: ________

THANK YOU

THANK YOU!

DAYA CHETTY

0825534166

dayachetty28@gmail.com