Teachers today face social and professional pressure from all educational stakeholders, including the learner, parent, employer and society, to perform within the directives of the constitution.
Education law functions to bring about balance inside the mutual rights and responsibilities of the respective members in education, and as a result procure a peaceful and harmonious environment conducive to the most appropriate education and schooling.
Teachers must know their obligations as stipulated through law because they are legally bound by means of these Acts.
Therefore, education law regulations functionally contribute to the beginning of harmonising relationships and making sure of co-operation amongst all stakeholders, learners and teachers within the educational milieu.
Education law promotes and controls appropriate behaviour, promotes peace and order, and protects the rights of individuals and groups participating in education.
Education law, therefore, generates a conducive framework for the professional functioning of teachers’ duty of care and Loco parentis in public and private schools. In addition to this, education law makes use of general and education laws, policies, rules and codes of conduct to guide and protect all shareholders in education.
Public and private schools in Namibia consist of learners from all walks of life. School teachers’ awareness of present-day educational laws can conform with applicable legal guidelines whilst handling challenges that arise in the school environment.
Knowledge of those laws may even assist them in preventing delictual liability problems. Furthermore, education law enables teachers to understand the laws that hold them accountable to the protection of learners at school.
We live in a litigious society in which learners or dad and mom who feel their rights were infringed upon by using public and private school establishments, frequently take legal action.
Teachers who understand education law can make certain that they observe the law to limit issues and litigation within the school environment.
Article 1 (6) of the Namibian constitution states that it is the “supreme law of Namibia”.
When creating legislation that affects children’s rights, legislators are required to go to the constitution for advice. The constitution establishes the constitutional structure’s essence and fundamental principles, and it should be combined with education law and policy.
Chapter 3 of the Namibian constitution of 1990 enshrines the essential human rights and freedoms of all persons in Namibia.
Furthermore, article 5 of the Namibian constitution provides that such fundamental human rights and freedoms enshrined therein must be respectable and upheld by means of all organs of government and its organisations, and all natural persons in Namibia.
The mention of human rights implies that those involved in education and school activities have particular responsibilities.
Empirical studies about education in Namibia affirm that many teachers are unaware of the legal rights of learners in their care, and others are unaware that learners have the right to sue them in court if they accept it as true that their rights had been violated.
Legislation’s perspective in Namibia
Therefore, the legislation’s perspectives, by inference section 3 (b) of the Education Act 3 of 2020, provides for the protection and promotion of the well-being of all children.
Furthermore, section 3 (d) of the Education Act 3 of 2020 stipulates that the responsibility of Namibia regarding the well-being, improvement and protection of children in terms of the United Nations Convention on the rights of the child, the African Charter on the rights and welfare of the child and different agreements, is binding on Namibia.
Delictual liability
A delict is defined as the act of a person that in a wrongful and culpable manner causes harm to some other.
According to this principle (delictual liability), a person who suffers damage or injury normally carries the fee or damage him or herself. Delictual liability entails five elements which are act, wrongfulness, fault, causation and harm.
In Namibia, article 25 (Enforcement of rights and freedom) of the Namibian Constitution gives individuals the right to approach a court for the protection of human rights, and for the court to award monetary compensation in respect of damages suffered.
Hence, in light of this latter factor, teachers in Namibia can be delictually liable. It should be noted that when legal liability (of anyone in any context) is at stake, the well-developed legal principles contained in the law of delict stand central to the discussion with all five fundamental elements. Therefore, education law knowledge is a sine qua non for teachers in Namibian schools.
* Gerson Ueijerekeravi Tjijahura is a second-year Master’s of Education in Education Law student at the North-West University (Potchefstroom campus) in South Africa. He holds a B.Ed Hons degree in Education Management, Law and Systems from North-West University (NWU), Potchefstroom, South Africa. Reach him at 2014tjij@gmail.com