When a patient is harmed at a medical practice, the instinctive target of a damages claim is the doctor whose name is on the door. But what happens when the doctor who actually treated the patient was a locum, an independent practitioner standing in for the owner of the practice? In B.Z.Y v Mduna (2361/2018) [2026] ZAECMHC 32, handed down on 26 May 2026, the Eastern Cape High Court, Mthatha, confronted exactly this question and dismissed the patient’s claim. The decision is a sharp reminder of two enduring principles of South African law: liability in delict must be proved element by element, and a litigant is bound by the case set out in their pleadings.

The facts in short

The patient presented at the defendant’s Mthatha practice on 28 May 2015 for a choice termination of pregnancy, at a stage when she was roughly 16 weeks pregnant. She was seen, examined and issued with medication, and was later booked off for a short period.

The patient’s case was that the treatment was negligent and led to an irreparable uterine tear. The injury, she said, necessitated a subtotal hysterectomy that left her permanently unable to bear children. Her factual account was supported by an expert report from an obstetrician and gynaecologist.

There was, however, a fundamental dispute over identity. The patient insisted throughout that the doctor who treated her was the practice owner himself. The owner denied it. His evidence was that he was not on duty that day; the patient had in fact been attended by a locum doctor. He produced the patient’s medical file, the front completed by his receptionist and the clinical page completed by the locum, together with the medical certificate the locum had signed. It was the patient’s first visit, so she had no prior knowledge of who the owner was.

By trial, certain things were common cause: the patient attended the practice on the date in question, she presented for a termination, and the practice owner neither examined her nor prescribed any medication. The court accepted, on the evidence, that the locum, not the owner, had treated her.

What is a locum, in law?

The owner explained the arrangement in terms the court accepted: a locum works in the place of another practitioner, using that practitioner’s rooms and facilities, but practising independently and for the locum’s own account. Critically, a locum of this kind is not an employee. That distinction, independent contractor versus employee, is the doorway to the question of vicarious liability, and it became decisive in this case.

The legal framework: the five elements of delict

To succeed in a medical negligence claim, a plaintiff must prove, on a balance of probabilities, every element of a delict. South African law recognises five: conduct (an act or omission), wrongfulness, fault (negligence or intent), causation, and harm. If even one is missing, the claim fails.

The court worked through the established authorities. On negligence, the test from Kruger v Coetzee asks whether a reasonable person in the defendant’s position would have foreseen the harm and taken steps to prevent it, and whether the defendant failed to do so. On wrongfulness, the court drew on Le Roux v Dey and Country Cloud Trading CC v MEC, Department of Infrastructure Development. The key insight is that wrongfulness is not about whether the defendant’s conduct was reasonable; it is a separate, policy-driven inquiry into whether it would be reasonable to impose liability on this defendant for this harm. As the Constitutional Court has framed it, wrongfulness usually operates as a brake on liability, holding it back where the social and economic costs of extending the law of delict would be too high.

Why the patient’s claim failed

Applied to the facts, the analysis was straightforward once the court accepted that the owner had not treated the patient. He performed no positive act towards her, no examination, no prescription, no advice. With no conduct attributable to him, there could be no wrongfulness or negligence on his part, and therefore no legal duty to avoid harm.

But the more instructive part of the judgment lies in what the patient did not do.

The fatal pleadings problem

The patient’s particulars of claim alleged negligence against the owner personally, on the basis that he had treated her. When the owner amended his plea to spell out that a named locum had attended to her, the patient elected not to amend her particulars. She never pleaded a case of vicarious liability against the owner for the locum’s alleged negligence, and she never advanced a case against the locum directly.

The court held it to the well-settled principle that a party is bound by their pleadings. Drawing on South African Transport and Allied Workers Union v Garvas and Minister of Safety and Security v Slabbert, the judgment stressed that holding parties to their pleadings is not mere technicality, it is part of legal certainty and the rule of law. A court cannot make a finding of liability on an issue that was never joined in the pleadings.

At trial, counsel for the patient tried to recast the claim as one of negligent or fraudulent misrepresentation, that the owner had held himself out as the treating doctor. The court refused to entertain it: a litigant may not plead one case and then try to prove a different one at trial. With no wrongful conduct by the owner, and no pleaded route to fix him with the locum’s alleged negligence, the claim was dismissed with costs.

Key takeaways

For patients and claimants:

• Identify the correct defendant from the outset. Where treatment may have been delivered by a locum, an associate or another independent practitioner, your particulars of claim must reflect that and, where relevant, plead vicarious liability against the principal and cite the legal basis for it.
• Amend when the defence shifts the ground. If a plea reveals that someone other than the named defendant treated you, failing to amend can be fatal. Pleadings define the battlefield; you cannot win on a case you never made.
• Evidence of who treated you matters enormously. Patient files, prescriptions, certificates and signatures often settle the identity dispute long before the merits are reached.

For practitioners and practice owners:

• The locum’s employment status is not academic. Whether a locum is an independent contractor or an employee can determine whether a practice owner is exposed to vicarious liability at all. Get the arrangement, and the paperwork, right.
• Keep meticulous records. The owner’s defence succeeded in large part because contemporaneous documents showed who had examined the patient and who had prescribed.

A note on what this case does not decide

It is important to read B.Z.Y v Mduna for what it is. The court did not find that the patient was uninjured, nor that the treatment was non-negligent, nor that a practice owner can never be liable for a locum. It decided, on these pleadings, that the owner owed no legal duty and that no case capable of fixing him with liability had been advanced. The door to vicarious liability for a locum’s conduct remains open, it simply has to be walked through deliberately, in the pleadings, with the correct legal basis identified.

Frequently asked questions

Can a doctor be sued for the negligence of a locum working at their practice? Possibly, but only on a properly pleaded basis. Where a locum is an employee, vicarious liability may arise. Where the locum is a genuine independent contractor practising for their own account, vicarious liability ordinarily does not apply, and the claimant would generally have to sue the locum. In B.Z.Y v Mduna, the patient never pleaded vicarious liability, so the question was never reached.

What is the difference between personal liability and vicarious liability in a medical negligence claim? Personal liability arises from the defendant’s own wrongful conduct. Vicarious liability is liability imposed on one party (such as an employer) for the wrongful conduct of another (such as an employee), even without personal fault. They are pleaded and proved differently.

Why are pleadings so important in South African litigation? Pleadings define the issues a court may decide. A court will generally not grant relief, or make a finding of liability, on a case that was not pleaded. This protects legal certainty and ensures each side knows the case it must meet.

What are the five elements of a delict in South African law? Conduct, wrongfulness, fault (negligence or intent), causation, and harm. A plaintiff must prove all five on a balance of probabilities; failure on any one element defeats the claim.

This article is provided for general information and does not constitute legal advice. Medical negligence and delictual claims turn heavily on their facts and on correct pleading. If you are considering a claim, or you are a practitioner facing one, contact our litigation team for advice tailored to your circumstances.

Citation: B.Z.Y v Mduna (2361/2018) [2026] ZAECMHC 32 (26 May 2026), Eastern Cape Division, Mthatha (Mhambi AJ).