What is an Example of a Malpractice in South Africa?

Malpractice in South Africa is professional negligence actionable under the common law of delict: a client or patient must show that the professional owed them a duty of care, breached that duty by falling below the standard of a reasonably competent practitioner in the same field, and caused them foreseeable harm as a result. The most visible examples are medical — surgical errors, birth injuries, misdiagnosis and delayed diagnosis, and medication mistakes — but the same framework covers negligent legal advice that misses a court deadline, a defective audit that misstates a client’s financial position, and engineering or architectural work that produces an unsafe structure. Claims are heard in the Magistrate’s Court for smaller amounts, otherwise in the relevant provincial High Court division, and recent reported decisions such as Sampson v Member of the Executive Council for Health, Western Cape (Case No. 11661/2021) confirm the categories remain actively litigated. “Malpractice” is not defined in a single South African statute — its legal meaning has been developed case by case through the courts, with the practitioner’s professional standard being assessed by peer evidence and by the surrounding regulatory framework (the Health Professions Council of South Africa for health practitioners, the Legal Practice Council for attorneys, SAICA for chartered accountants, ECSA for engineers, and SACAP for architects).

What “Malpractice” Means in South African Law

There is no single statute in South Africa that defines “malpractice.” The term is used in everyday and media language to describe professional negligence that is actionable at common law. The underlying cause of action is the delict of negligence, and a claimant must prove each of the following elements on a balance of probabilities:

• A duty of care owed by the professional to the claimant.
• A breach of that duty, measured against the standard of a reasonably competent professional in the same field.
• Harm actually suffered by the claimant (whether patrimonial, bodily, or both).
• Causation linking the breach to the harm on a foreseeability basis — the harm must be a foreseeable consequence of the negligent act or omission.

The professional’s standard is anchored in the competency framework of the relevant regulatory body — the Health Professions Council of South Africa (HPCSA) for medical practitioners, the Legal Practice Council (LPC) for attorneys and advocates, the South African Institute of Chartered Accountants (SAICA) for chartered accountants, the Engineering Council of South Africa (ECSA) for engineers, and the South African Council for the Architectural Profession (SACAP) for architects. The legal standard, however, is ultimately judged by the court rather than by the regulator alone — which is why “malpractice” claims are, in legal terms, claims for damages arising from professional negligence, not claims under any free-standing malpractice statute.

Medical Malpractice — the Most Litigated Category in South Africa

Medical malpractice is the category most often litigated, most often reported in the press, and most often the subject of academic research in South Africa. The patterns recur across every provincial Health Department and the private sector:

Category	Typical facts	Why it qualifies as malpractice
Surgical errors	Operations on the wrong site, foreign objects retained after surgery, anaesthetic mismanagement.	The outcome itself often triggers a res ipsa loquitur line of reasoning — the result speaks to negligence.
Birth injuries	Cerebral palsy and Erb’s palsy from failures in foetal monitoring, delayed decision-to-deliver, and instrumental delivery.	Quantum is typically the highest of any malpractice category because lifetime care costs are at stake.
Misdiagnosis and delayed diagnosis	Failure to interpret imaging, pathology, or clinical signs timeously, leading to missed windows for treatment.	The breach lies in not following the diagnostic pathway a competent peer would have followed.
Medication errors	Wrong drug, wrong dose, wrong route, or failure to check allergies and interactions in hospital or primary-care settings.	The breach is one of the clearest: a peer would not have made the prescription error.
Inadequate consent	Performing a procedure without informed consent, or where the risks that actually materialised were not disclosed.	Not every bad outcome is malpractice — but failing to disclose a known material risk is an independent ground of claim.

A recent reported example

The Western Cape High Court’s consideration of Sampson v Member of the Executive Council for Health, Western Cape (Case No. 11661/2021) is one of several recently reported decisions in which alleged failures in diagnosis and treatment at a public hospital were tested against the common-law elements of negligence — confirming that these categories remain actively in litigation in South Africa, and not only in medical-practitioner settings.

Beyond Medicine: Other Categories of Malpractice in South Africa

“Malpractice” is a profession-neutral legal term, even though the centre of gravity of SA litigation is medical. Other regulated professions are regularly exposed to the same duty of care:

• Legal malpractice — missed court deadlines (prescription-barred claims, lapsed appeals), negligent drafting of wills or contracts, conflict-of-interest failures, and inadequate representation that a competent attorney would not have made. Attorneys are regulated by the Legal Practice Council and carry professional indemnity insurance as a condition of practice.
• Accounting and auditing malpractice — defective audits that misstate a client’s financial position, negligent tax advice that exposes the client to SARS penalties, and bookkeeping errors with downstream commercial consequences. SAICA’s disciplinary processes sit alongside a claimant’s common-law right to sue.
• Engineering and architectural malpractice — designs that don’t comply with the National Building Regulations made under SANS 10400, or with the relevant professional codes, leading to structural failure or unsafe buildings. Claims often run through the contractor chain as well as against the professional.
• Other regulated professions — veterinary malpractice, dental malpractice (covered under the HPCSA framework), and notarial malpractice are all theoretically possible, although the bulk of litigation and public conversation in South Africa remains medical.

How a Malpractice Claim Is Brought in Practice

Bringing a professional-negligence claim in South Africa follows a recognisable pattern, although the detail turns on who the defendant is, where the harm occurred, and the quantum claimed.

Forum and jurisdiction

Forum	When used	Key statutory anchor
Magistrate’s Court (district or regional)	Claims within the Magistrate’s Court jurisdictional ceiling.	Magistrates’ Courts Act 32 of 1944 (jurisdictional ceiling set by subordinate legislation).
Provincial High Court division	Claims above the Magistrate’s Court ceiling or matters of sufficient complexity.	Uniform Rules of Court; practice directives of the relevant division.
Specialist Claims Court (for certain State medicolegal claims)	Claims against provincial Health MECs above a statutory threshold.	State Liability Act 20 of 1957, s 3; section repealed/regulated by the Institution of Legal Proceedings Against Certain Organs of State regime.

Who is sued

The defendant is usually the individual professional. Where the negligent act was committed in the course and scope of employment, vicarious liability can attach the employer — the hospital, the firm, or the practice. Claims against the State for malpractice in public hospitals proceed against the relevant Member of the Executive Council (MEC) and trigger the notice requirements of the State Liability Act.

Notice before summons against the State

Under section 3 of the State Liability Act 20 of 1957, written notice of the intended claim must be served on the responsible organ of state, and summons may not be issued until at least 30 days after that notice. The Registrar of the High Court may extend the 30-day period on good cause shown. This step is frequently missed by unrepresented litigants — and missing it can defeat a claim before it is filed.

The expert-witness step

South African malpractice claims almost always require an expert affidavit from a peer practitioner confirming that the standard of care was breached. A claim filed without expert support is vulnerable to a special plea that the particulars of the cause of action are insufficient (non satisficit ad formularia legis), and liable to be struck out for lack of particularity.

Common defences

• The professional met the standard of care.
• The harm was not caused by the alleged breach — causation is frequently the battleground at trial.
• The claimant was contributorily negligent (for example, by failing to follow prescribed treatment or by delaying presentation).

Why “Malpractice” Has Become a Word Often Heard in the News

The rise in public attention is not coincidental. Civil-society organisations have published briefs framing medical malpractice as both a clinical-quality issue and an access-to-justice issue for patients who struggle to prove complex claims against well-resourced institutional defendants. The Helen Suzman Foundation’s “Sorting Out Medical Malpractice” brief is one example of this framing, and the same Foundation has followed up with policy briefs addressing medico-legal claims liability at provincial Health Department level.

Think-tank commentary frames the situation as a crisis: high claim volumes against limited public-health budgets, a long lead time before trials, and settlement practice that does not always track compensable harm. Academic research — including work from the University of Pretoria’s research repository on the extent and consequences of malpractice in the South African system — tries to quantify what succeeds and what doesn’t, separating claims that establish negligence from those that collapse at one of the four common-law elements.

What to Do If You Suspect Malpractice

The first hours and days after a suspected incident are usually when the evidence is most accessible. A short, methodical checklist helps preserve the claim’s prospects:

1. Keep all records — clinical notes, prescriptions, correspondence, invoices, contract drafts, photographs of injury, and any other contemporaneous paper trail — in original form. These documents are usually the foundation of any later claim.
2. Note dates and witnesses, including the names of any second-opinion practitioners.
3. Be mindful of prescription. A medical-malpractice claim under the Prescription Act 68 of 1969 generally prescribes within three years of the date the debt became due — that is, from when the harm and its cause became reasonably knowable — with limited exceptions for latent harm and minors. Prompt legal advice prevents a meritorious claim from going out of time.
4. Contact the relevant regulatory body (HPCSA, LPC, SAICA, ECSA, SACAP) if the issue is a fitness-to-practise or disciplinary concern. These processes run in parallel with any civil claim and are not alternatives to it.
5. Expect expert evidence and a multi-year timeline for any monetary claim beyond a small amount.

Where the suspected malpractice involves a regulated professional in Gauteng — a doctor at a public hospital, an attorney missing a deadline, an engineer signing off on a non-compliant structure — the General & Commercial Litigation practice at Burger Huyser Attorneys can take instructions from any of its Gauteng branches. The Linden head office on 011 888 0246 is the natural starting point; matters are routed from there to the branch best suited to the forum in which the claim will be brought.

Frequently Asked Questions

Is malpractice a criminal offence in South Africa?

Not by that name. Malpractice is the colloquial term for professional negligence, which is a civil wrong actionable for damages. Where the conduct is extreme — for example, deliberate falsification of records or reckless conduct causing serious injury — a parallel criminal charge may arise (such as culpable homicide or assault under the Criminal Law Amendment Act where the conduct amounts to dolus eventualis), but the daily legal meaning of “malpractice” is civil liability for negligent professional work.

What is the most common example of malpractice in South Africa?

Medical malpractice — particularly surgical errors, birth injuries, and delayed diagnosis — accounts for the large majority of reported SA malpractice cases. Legal and accounting malpractice claims do occur, but are far less frequently reported on.

Can I sue a doctor for a bad outcome?

Only if the bad outcome was caused by a breach of the standard of care owed by the doctor, and only if that breach was foreseeable and avoidable. Not every bad outcome is malpractice — the test is what a competent peer doctor would have done in the same circumstances, not the patient’s expectation of a perfect result. A claim without expert evidence supporting the allegation of breach is generally not sustainable.

How long do I have to bring a malpractice claim?

Generally three years from the date the harm and its cause became reasonably knowable, under the standard framework of the Prescription Act 68 of 1969. Special rules apply where the harm was latent (for example, where a surgical item is discovered years later) or where the claimant is a minor — a specific attorney should be consulted on the correct limitation date before any time-sensitive step is taken.

Where does a malpractice claim get filed?

In the Magistrate’s Court if the claim is within that court’s jurisdictional ceiling, otherwise in the relevant provincial High Court division — usually where the harm occurred or where the defendant practises. Claims against public-sector practitioners are brought against the responsible MEC in that province, with specific notice requirements under the State Liability Act 20 of 1957.

Do I need an expert affidavit to bring a malpractice claim?

Effectively, yes — South African courts require an expert supporting affidavit from a peer practitioner to establish that the standard of care was breached. Without this, the claim is open to a special plea of non satisficit ad formularia legis (failure to plead a cause of action with the required particularity).

Malpractice claims are technical, expert-driven, and run on tight prescription timelines. While this article explains what malpractice looks like in South Africa generally, every claim turns on its own facts — the standard of care, the causation link, and the evidence available. Burger Huyser Attorneys’ General & Commercial Litigation practice fields professional-negligence matters from its Gauteng branches and can be reached for an initial, no-commitment consultation through the Linden head office on 011 888 0246 (Mon–Fri, 7:30am–4:30pm), the Pretoria Menlyn branch on 012 471 5700, or the Bedfordview branch on 011 201 7190. The firm is rated 4.8/5 across 250+ Google reviews (Trustindex verified — “Top Rated Law Firm in South Africa”). For someone weighing whether the facts of their situation are enough to support a malpractice claim, that first conversation is the most useful single step — and should happen before prescription becomes an issue.