Equality, it has been said, cannot be achieved by blindly equating everyone. At times, equality is better achieved by distinguishing between people or groups. It is only when such a distinction is fair, reasonable and justifiable that it can meet constitutional precision.
Under the South African Constitution, equality is a value; a right and a goal: a value in the sense that it underpins policy and practice; a right in the sense that it is entrenched, justiciable and enforceable, both against the State and individuals, where infringed; a goal in the sense that we recognise that it has not been fully attained, but belongs to the future as much as it belongs to the present.
The insurance industry is certainly one industry where this ‘equating’ of individuals is never seen. Insurance in this context must not be simply be understood to refer to car insurance, as we usually loosely use the term, but to any policy in terms of which a person pays premiums in order to protect themselves against a potential peril. It thus includes travel insurance; life insurance; home insurance et cetera.
Sections 9(3) and (4) of the Constitution provides that nobody, including the state may unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
This is the only section in the Constitution where the word “disability” appears, but this is not the point being underscored. The point being underscored is that discrimination in itself is not prohibited – what is prohibited is unfair discrimination, in this case on the basis of disability.
More often than not, the dealings of insurance companies are characterised by discrimination. Insurance companies use various statistics, usually general or stereotypical in nature, as well as biological and physiological traits such as gender; age and sex in reaching a premium to be paid by a person seeking insurance. Although such an assessment has been said to be based on reliable actuarial statistics, an unfair conclusion may nevertheless be reached. This is true with regards to, for instance, a male driver under the age of 25 that is extra cautious when driving, but is classified as high risk because of his age and gender – the usually accepted view that young males are not the best of drivers. The same can certainly be said of persons with disabilities, who, it would be argued by the insurers must ‘pay for their disability’ based on a general characterisation about disability.
Apart from the fact that the insured in such a case, in all likelihood, did not choose to be a person with disability, and it would be unfair to expect them to carry the weight for this reality in ‘extra premiums’, there clearly seems to be a legal issue beyond this policy consideration aspect.
South Africa does not have a codified disability law statute, this despite having ratified the Convention on the Rights of Persons with Disabilities in 2007. The fragmented disability right protection can be found in statutes that relate to employment and education, but the same cannot be said of the financial industry. For example, the Consumer Protection Act does not cover specific topics in relation to disability rights.
What complicates this discussion is that in an attempt to categorise individuals so that insurance companies can come up with an insurance premium, and where disability is taken into account in this process, the insurance company may find itself unfairly discriminating, perhaps unintentionally so, against a person with disability, and thereby acting outside constitutional constraint.
Yet again, intention is not a requirement to establish unfair discrimination. What simply needs to be established is that there was discrimination, or put differently, differentiation, and that such differentiation was unfair.
What must happen? Must disability be excluded altogether in the premium consideration? Must each person said to be a person with disability be subjected to an individual test, so that fairness is achieved?
These questions demonstrate how complex the subject is, but also the fact that private law (contract and insurance) is now subject to public law (constitutional and international law) scrutiny and imperatives. The subject also bolsters the fact that it is about time that the South African legislature takes the subject serious and legislates it. Unfair discrimination on the basis of disability in the financial sector is a subject which would need to find expression in the envisaged Act.
Written by Thubelihle Mpisi of MPISI CORA, a legal consultancy firm practicing in Commercial Law and Governance.