Every day, millions of parents put their trust and faith in schools to care for their children. When things go awry, it leaves many asking about safety measures and what the law requires of those responsible for South Africa’s youngest citizens.
Legal&Tax Services’ expert Chantel Cronje unpacks the issue for us:
Safety at school is a legal right
The law definitely places responsibility on schools and other authorities to ensure they protect the children in their care. Liability refers to a person’s legal responsibility. The law holds adults liable to be able to anticipate danger and avoid a certain level of risk for children and themselves.
The legal responsibility for teachers and other school officials is called the ‘duty of care’. This idea has been a part of the law for a long history. In fact it comes all the way from the Roman-Dutch law which identifies a legal role called ‘in loco parentis’. This means someone who is acting in the place of, or instead of, a parent.
This legal idea means that the person caring for your child when you are not there, stands in as the parent. This person is legally expected to provide care on the same level as you would, in terms of making sure that the child is safe and well.
If we look at South African legal history, we find that already in 1952 the Appeal Court ruled that a teacher must offer the duty of care equal to that of a “prudent father”. The description of “prudent” means the court expects the teacher or school official to be thoughtful, sensible and wise when looking after the child.
Furthermore, even if a child goes somewhere they have been told not to go and then is harmed, the adult is still responsible. The adult is expected to have full control over the child; if the child disobeys them, the fault is still on the adult.
If a child has unfortunately been hurt, or sadly even died, while under the care of a school or other authority, the court will have to decide whether that person or group is liable for this tragedy. The court makes this decision by establishing whether any reasonable person who was in the position of a caregiver could have seen beforehand that there was a possibility the child could be harmed in that situation. In addition, the court will decide whether any reasonable person would have taken steps to guard against and try stop the child from being put in danger.
In particular, the court looks carefully at how young the child is. The younger the child, the greater the care that is expected.
Moreover, the court also looks at how serious the danger was. The more dangerous the situation was, the more duty of care the adult should have taken.
Legislation will protect your child
Legislation refers to specific pieces of law. South African legislation that applies to school’s care of their students includes both the SA Constitution from 1996 as well as the South African Child Care Act of 1983.
The Constitution has a number of sections that focus on making sure the best interests of children are protected. The Constitution discusses many rights for children such as the right to proper care, shelter and protection against neglect.
The SA Child Care Act states that teachers and other education officials must always take care of their students by reporting any cases of child neglect and abuse.
South Africa has also formally committed to obeying international laws that relate to child care. The United Nations’ Convention on the Rights of the Child is considered the most important piece of law throughout the world in terms of a school’s duty of care and the safety of students.
In addition, the Declaration of the Rights of the Child of 1959 is the law where we first hear the now well-known phrase of ‘the best interest of the child’. This law states that the ‘best interests of the child’ is what has to be the ‘guiding principle’ – the key influence – for how any adult, responsible for the education and guidance of children, must act.
Irresponsible adults can be found guilty
It is therefore clear that the law will indeed hold a school legally responsible for harm that comes to a student under certain conditions. The court will have to decide if the student was harmed because the teacher or other school official behaved in a way that did not fit into legal standards of care expected.
The school would then be liable for damages under what is called the Law of Delict.
In order for the school to be found guilty of a Delict – of having acted in a way that was not up to a legal standard of care – five aspects need to be proven.
- The school official has to have acted or conducted themselves in a particular way.
- There has to be damage done to the student.
- The damage that happened to the student has to be clearly linked to the particular act or conduct of the school official.
- The harm the child experienced must be unlawful - in that it goes against one of the child’s legal rights
- It has to be proven that the harm that came to the student is owing to the fault of the adult in charge of their care. This fault can either be in the form of negligence (culpa) or intent (dolus).
If the school is a government school, then you would claim against the MEC for education, the controlling body of education in the province. Taxpayers fund successful claims against government schools.
If the incident occurred at an independent school, the claim would be against the school or the school board. If the school cannot afford to pay compensation, it could be liquidated – its valuable possessions and property sold off – in order to settle a claim.
If the incident occurred at a private school and that school is insured, the school’s insurer would deal with the liability claim.
What about indemnity forms?
One of the tools, schools have relied upon to protect themselves from liability is the use of indemnity forms. Even if an indemnity form is signed by a parent or guardian, this does not exempt the school from being held responsible for any harm that may occur.
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If you have any concerns around a school activity or camp your child is attending or has attended, speak to a Legal&Tax legal advisor.
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