Legal, regulatory, labour and insurance considerations arising from B.Z.Y v Mduna and Mohun v Phillips.
Prepared by Maud Letzler, Head of Legal – Genoa Underwriting Managers
Introduction
Locum practitioners are common in healthcare, but they create legal, regulatory, employment and insurance risks that must be managed deliberately. South African law does not make a practice automatically liable whenever a locum negligently treats a patient. Where the locum is a genuine independent contractor, the practice will not ordinarily be vicariously liable for the locum’s clinical negligence. The practice may, however, remain liable for its own negligent conduct, and it may be vicariously liable if the locum is legally an employee.
The two central authorities are B.Z.Y v Mduna and Mohun and Another v Phillips NO obo Shearer and Another. Mduna highlights the importance of identifying the actual treating practitioner, maintaining accurate records and pleading the correct basis of liability. Mohun, a Supreme Court of Appeal decision, confirms that a principal is not ordinarily vicariously liable for the delicts of a genuine independent contractor, while preserving liability for the principal’s own fault.
Neither decision gives practice owners blanket immunity. A practice may still face liability if it appoints an unsuitable practitioner, fails to verify registration or competence, permits treatment outside the locum’s experience, operates defective systems, fails to ensure follow-up, misleads patients about who is treating them, or misclassifies an employee as an independent contractor. The safest approach is to structure the relationship honestly, record responsibilities in writing, maintain sound clinical-governance systems and ensure that both locum practitioners and the practice hold suitable, coordinated insurance or indemnity protection.
The case law
B.Z.Y v Mduna (2361/2018) [2026] ZAECMHC 32 concerned treatment provided at a private medical practice in connection with the termination of a pregnancy. The plaintiff alleged that negligent treatment caused a serious uterine injury, leading to a hysterectomy and the loss of her ability to bear further children. She sued Dr Mduna on the basis that he had personally examined and treated her.
Dr Mduna denied treating the plaintiff and stated that another doctor, acting as a locum, had provided the treatment. The contemporaneous clinical records and medical certificate identified the locum as the treating practitioner. The plaintiff failed to prove that Dr Mduna had personally provided the treatment and had not properly pleaded that he was vicariously liable for the locum’s conduct. The claim against him was dismissed.
The judgment does not establish that practice owners can never be liable for locum practitioners, that every locum is an independent contractor, or that describing a practitioner as a locum automatically protects the practice. Its main significance lies in the need to identify the treating practitioner accurately, maintain reliable records and plead the correct legal basis for liability.
The stronger appellate authority is Mohun and Another v Phillips NO obo Shearer and Another (1219/2021) [2022] ZASCA 186. A specialist physician had been engaged as a locum by a medical practice providing services in a hospital emergency unit. The patient suffered severe brain injury after inadequate care and monitoring. The Supreme Court of Appeal upheld the finding that the locum had been negligent but separately considered whether the medical practice that engaged him was also liable.
For purposes of the appeal, the locum was treated as an independent contractor. The Court confirmed that a principal is not ordinarily vicariously liable for the wrongful conduct of an independent contractor. It distinguished liability for the contractor’s conduct from liability arising from the principal’s own negligent or wrongful conduct. The claimant also asked the Court to recognise a non-delegable duty under which the practice would remain responsible for patient safety despite appointing an independent contractor. The Court declined to develop the common law on the record before it because the necessary legal and factual foundation had not been established.
Read together, the cases support four conclusions. First, the practitioner who personally provides negligent treatment may be personally liable. Second, a practice is not ordinarily vicariously liable for a genuine independent contractor. Third, a practice may still be liable for its own negligent acts or omissions. Fourth, a practice may be vicariously liable if locum practitioners are legal employees and the negligence occurred in the course and scope of employment.
Potential liability of the practice
A practice cannot avoid liability merely by describing locum practitioners as independent contractors. The actual relationship, the conduct complained of and the way the claim is pleaded will determine the outcome.
Vicarious liability may arise where the locum is legally an employee. Direct liability may arise from the practice’s own conduct, even where the locum is a genuine independent contractor. Possible allegations include failing to verify current professional registration, appointing an inadequately qualified practitioner, permitting specialised work without adequate experience, providing unsafe equipment or facilities, operating defective emergency or medicine-management systems, failing to communicate abnormal results, maintaining poor records, or failing to establish a safe handover process.
These are not automatic grounds of liability. Each alleged duty, breach, causal connection and loss must be properly pleaded and proved. However, they illustrate why a practice cannot transfer all patient-safety risk to locum practitioners through a contract.
Employee or independent contractor
The term “locum” describes a temporary replacement arrangement; it does not determine legal status. A locum may be a fixed-term or part-time employee, a genuine independent contractor, or a practitioner supplied through a temporary employment service.
Factors suggesting employment include control over working hours or the manner of work, integration into the practice’s organisation, economic dependence, regular remuneration resembling a salary, provision of equipment, exclusivity, leave approval, disciplinary control and an indefinite or repeatedly renewed appointment. Factors supporting independent-contractor status include the freedom to accept or decline sessions, work for several practices, invoicing for defined services, carrying independent business risk, maintaining separate professional cover and remaining outside the permanent staff structure.
Section 200A of the Labour Relations Act creates a rebuttable presumption of employment where specified indicators are present, subject to the applicable earnings threshold. Even where the presumption does not apply, the ordinary legal test remains relevant. Clinical independence alone does not prove independent-contractor status; employed professionals may still exercise substantial clinical judgment.
Misclassification can expose the practice to unfair-dismissal claims, Basic Conditions of Employment Act obligations, UIF and payroll consequences, Compensation Fund obligations, CCMA or Labour Court proceedings, tax consequences and increased vicarious-liability exposure.
HPCSA requirements
Ethical Rule 9 permits a practitioner to appoint a locum tenens for no longer than six months only if the locum is registered under the Health Professions Act to practise independently, currently appears on the relevant register and is not suspended from practice. An indefinite “permanent locum” arrangement is therefore inappropriate and should be restructured if the relationship is intended to continue beyond six months.
Before the appointment starts, the practice should independently verify the locum’s identity, HPCSA registration number, registration category, independent-practice status, annual registration, recognised specialty or subspecialty where relevant, and any conditions or restrictions on practice. The practice should retain dated evidence of the verification.
Ethical Rule 21 limits practitioners, except in emergencies, to professional acts for which they are adequately educated, trained and sufficiently experienced, and which are performed under proper conditions and in appropriate surroundings. Locum practitioners remain personally responsible for practising within their competence. The practice should nevertheless assess procedure-specific competence before allowing higher-risk work such as surgery, anaesthesia, sedation, obstetrics, termination of pregnancy, invasive procedures, emergency medicine, radiology or treatment involving controlled medicines.
Amended Ethical Rule 18 requires a written contract for the professional appointments and employment relationships to which the rule applies. It should not be overstated as clearly applying to every private independent-contractor arrangement. In practice, every locum engagement should still be recorded in a written agreement addressing legal status, duration, scope of work, restricted procedures, records, consent, billing, confidentiality, follow-up, complaints, insurance, termination and clinical handover.
National Health Act, records and patient communication
Sections 6 and 7 of the National Health Act regulate the information that must be provided to patients and the requirement for informed consent. The treating locum must provide appropriate information about the patient’s health status, proposed treatment, material risks, expected benefits, reasonable alternatives, relevant costs, the consequences of refusing treatment and required follow-up. A signed form does not replace a proper consent discussion.
The Act does not expressly require a separate locum-disclosure form in every case. The patient should nevertheless not be misled about the identity of the treating practitioner. The use of locum practitioners should be disclosed where the appointment was made with a named practitioner, the patient relied on that practitioner’s expertise, the substitute has materially different qualifications or experience, an invasive or high-risk procedure is planned, or the practitioner’s identity is material to the patient’s decision.
Section 13 requires health records to be created and maintained. Records should accurately identify the practitioner who examined, prescribed for or treated the patient and should record the date, clinical findings, diagnosis, treatment, medication, consent discussion, material risks, investigations, referrals, follow-up instructions and outstanding actions. The records in Mduna were central to establishing who had treated the patient.
Individual electronic logins, secure signatures, access audit trails, clear allocation of outstanding results and documented handovers are strongly recommended governance controls. The practice should have a written system allocating responsibility for laboratory, radiology and pathology results, abnormal findings, repeat prescriptions, referrals, patient calls, post-procedure complications and unfinished clinical tasks. The end of a locum’s session must not leave uncertainty about responsibility for the patient.
POPIA, occupational health and agencies
Patient health information is special personal information under the Protection of Personal Information Act. A locum may act under the practice’s authority, as an operator, as a separate responsible party or within another shared processing arrangement, depending on who determines the purpose and means of processing. The contract should reflect the actual arrangement rather than automatically labelling locum practitioners as operators.
The practice should provide individual access credentials, limit access to clinical need, prohibit shared passwords, regulate personal devices and downloads, require secure communications, preserve audit trails, require immediate reporting of suspected breaches and terminate access when the appointment ends.
Where the locum is an employee, the Occupational Health and Safety Act and the Compensation for Occupational Injuries and Diseases Act may apply. Relevant risks include sharps injuries, infectious exposure, unsafe equipment, hazardous medicines, radiation, inadequate protective equipment and workplace violence. Independent-contractor status does not excuse unsafe premises or systems.
Where a locum is supplied through an agency, the practice should establish in writing who employs the practitioner, handles payroll and workplace injuries, verifies registration and competence, carries insurance, manages performance or discipline and responds to claims. The practice should not assume that the agency carries all employment or malpractice risk.
Insurance and indemnity
No general HPCSA rule has been identified that makes professional-indemnity or medical-malpractice insurance compulsory for every practitioner in every circumstance. Suitable protection is nevertheless essential as a matter of prudent governance and may be required by a practice, hospital, facility, agency, funder or other contract.
Locum practitioners should maintain personal professional-indemnity or medical-malpractice protection appropriate to the profession, specialty, procedures, practice locations and nature of the locum work. The practice should verify the period of cover, indemnity limit, territorial scope, retroactive date, relevant exclusions and whether regulatory or disciplinary defence is included. Where cover is claims-made, continuous protection and appropriate run-off or extended-reporting arrangements are important.
The practice should maintain separate entity-level protection and should not assume that the locum’s personal cover protects the practice. The wording should be checked for the practice entity, owners, partners, directors, employed practitioners, locums, independent contractors where intended, vicarious liability, administrative or systemic negligence, negligent appointment or credentialling, failure to follow up results, nursing and support staff, records failures and legal defence costs.
Depending on the practice’s activities, additional cover may include public liability, cyber and privacy liability, employers’ liability, employment-practices liability, regulatory legal-expenses cover and directors’ and officers’ liability. A contractual indemnity does not prevent a patient from suing locum practitioners, the practice or both. It creates only a possible right of recovery between the parties and is not a substitute for suitable insurance.
Minimum governance framework
Before the locum begins work, the practice should:
- verify current HPCSA registration, independent-practice status and any restrictions or suspension;
- confirm qualifications and procedure-specific competence;
- determine whether the locum is an employee or independent contractor based on the real relationship;
- conclude a written agreement that records scope, responsibilities, handover and termination;
- confirm the locum’s personal malpractice protection and the practice’s entity-level cover;
- provide individual system access and explain recordkeeping, consent, referral and emergency procedures;
- allocate responsibility for outstanding results and follow-up; and
- establish adverse-event, complaint-reporting and end-of-engagement procedures.
During the engagement, the practice should monitor registration and insurance status, review compliance with clinical systems, audit records where appropriate, investigate complaints and ensure that no shared electronic credentials are used. At the end of the appointment, the practice should obtain a complete clinical handover, allocate all outstanding patient actions, remove access, retain credentialling and insurance records and preserve relevant clinical and billing information.
Conclusion
The correct legal position lies between two extremes. A practice is not automatically liable for every locum, but it is not automatically protected by describing the practitioner as an independent contractor. Under Mohun, a practice is not ordinarily vicariously liable for a genuine independent contractor, while Mduna confirms the importance of identifying the treating practitioner and pleading the correct basis of liability.
The practice may still be liable for its own negligence, and an locum practitioners may expose it to vicarious liability. Effective risk management requires accurate classification, verified credentials, a written agreement, clear patient communication, reliable records and handover systems, POPIA-compliant access controls and coordinated insurance protection for both the locum practitioners and the practice.
Bibliography
- B.Z.Y v Mduna (2361/2018) [2026] ZAECMHC 32, Eastern Cape Division of the High Court, Mthatha, 26 May 2026.
- Mohun and Another v Phillips NO obo Shearer and Another (1219/2021) [2022] ZASCA 186, Supreme Court of Appeal, 22 December 2022.
- Chartaprops 16 (Pty) Ltd and Another v Silberman [2008] ZASCA 115; 2009 (1) SA 265 (SCA).
- Health Professions Act 56 of 1974.
- Ethical Rules of Conduct for Practitioners Registered under the Health Professions Act, Government Notice R717 in Government Gazette 29079 of 4 August 2006, as amended.
- Board Notice 856 of 2025, Government Gazette 53708 of 21 November 2025.
- National Health Act 61 of 2003, particularly sections 6, 7 and 13–17.
- Protection of Personal Information Act 4 of 2013.
- Labour Relations Act 66 of 1995, particularly sections 198 and 200A.
- Basic Conditions of Employment Act 75 of 1997, particularly section 83A.
- Code of Good Practice: Who Is an Employee? Government Notice 1774 in Government Gazette 29445 of 1 December 2006.
- Occupational Health and Safety Act 85 of 1993.
- Compensation for Occupational Injuries and Diseases Act 130 of 1993.
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