Fear, Blame and Silence

How criminal liability is changing the way medical errors are reported in South Africa

In every healthcare system, integrity is crucial. When something goes wrong in a hospital or clinic, medical professionals need to be able to communicate openly in order to learn from their mistakes and safeguard future patients. The goal of reporting medical errors is to make improvement rather than place blame. However, a growing proportion of South African medical practitioners are hesitant to report mistakes (South African Medical Association Statement on the Criminalisation of Medical Practice 2020; Molelekwa “criminalising medical errors: what are the issued?” spotlight 12 June 2024).

This is a real fear. Following unfavourable patient outcomes, criminal charges, particularly culpable homicide, have been filed against healthcare professionals more frequently in recent decades. Although accountability is crucial, doctors are afraid that acknowledging a mistake could jeopardise their freedom, profession, or reputation due to the increasing emphasis on criminal law. ( Van der Walt v S [2020] ZACC 19; Dweba A, Lerm H & Gumboh E “The Criminal Culpability of Health-Care Practitioners in South Africa” (2025) 46 Obiter 1).

Medical Errors are not Always Negligence

Medicine is unpredictable and complicated. Even the most careful and competent medical professionals operate in situations where results are unpredictable. A medical error is typically an unintentional mistake that is frequently brought about by system failures, such as staffing shortages, missing records, malfunctioning equipment, or excessive workloads. Not all mistakes results in injury, and not all harm is cause by carelessness. (Molelekwa Spotlight 12 June 2024; SAMA Statement 2020).

On the other hand, negligence is more targeted. It entails a failure to provide the level of care that would be anticipated of a reasonable practitioner in similar circumstances, which harms the patient. Fault is the main distinction. This distinction is crucial, but once the legal system gets involved, it is frequently forgotten. (Dweba et al Obiter 2025; Burchell J Principles of Criminal Law 4 ed 2013)

Organisations like the South African Medical Association have repeatedly earned that treating medical errors as criminal acts ignores the reality of public healthcare. Doctors do not work in ideal conditions, particularly in state hospitals where resources are limited and systems frequently fail. (SAMA Statement 2020; Auditor-General South Africa Parliamentary Briefing 2023).

Why criminal law plays such a powerful role?

In South Africa, criminal liability for medical practitioners is typically based on culpable homicide, which requires merely negligence and a causal link to death. Unlike some other countries, South African law does not identify different levels of carelessness. This means that even a minor mistake, if legally negligent and causes death, might result in a criminal conviction. (Dweba et al Obiter 2025; Carstens PA “Medical negligence as a causative factor in South African criminal law” (2007) 128 SALJ 192).

The issue isn't that doctors should never face criminal charges. Criminal law has a valid role to play when conduct is reckless, severely negligent, or purposeful. The challenge rests in how low the threshold for criminal responsibility is, and how poorly criminal courts are suited to dissecting sophisticated medical judgements made under pressure. (Van der Walt v S [2020] ZACC 19; Medical Protection Society 2024).

For many practitioners, this creates a difficult reality, even when acting in good faith, they may risk punishment if the outcome is terrible. (Medical Protection Society 2024; Dweba et al Obiter 2025).

Silence undermines patient safety

Patient safety is dependent on learning. When errors are acknowledged, evaluated, and used to address underlying issues, healthcare systems improve. When faults are disguised, systems repeatedly fail. (World Health Organization referenced in Molelekwa Spotlight 2024; SAMA Statement 2020).

South Africa's public healthcare system has already challenges with poor record-keeping and incident reporting. Fear of criminal culpability contributes to the situation. When data is insufficient or instances go unreported, hospitals are unable to identify patterns or improve processes. Ironically, this also weakens the State's defence in civil negligence claims, contributing to the same litigation issue the criminal statute is designed to remedy. (Parliamentary Monitoring Group 2023; Auditor-General South Africa 2023).

The reality of the South African Health System

South Africa's public health system is under a great deal of stress. Provincial health departments are dealing with medical negligence lawsuits worth tens of billions of rands, mainly in the Eastern Cape and KwaZulu-Natal. Budgets allocated for service delivery are increasingly being diverted to litigation and settlements. (Parliament Media Statement 22 August 2024; PMG Briefing 27 September 2023).

The case of Van der Walt v S demonstrates how quickly professional negligence might result in criminal punishment. The Constitutional Court confirmed that a doctor can be convicted of culpable homicide for irresponsible professional behaviour, even if there was no intention to injure. (Van der Walt v S [2020] ZACC 19).

Conclusion

Accountability is crucial. Serious misbehaviour should never be excused, and patients who have been injured deserve an explanation. However, a fear-driven healthcare system cannot move forward. When doctors are hesitant to speak honestly, everyone suffers, but patients are the most affected.

To ensure safer healthcare, South Africa must prioritise ethics, education, and accountability. Criminal law should not be used as a harsh instrument to prohibit professionals from performing their best in broken systems, rather, it should be reserved for really reprehensible actions. A listening system learns. A system that penalises silence causes more harm.