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Ensure that your insurance does not discriminate against you

Age discrimination is an issue that has received very little attention in South African courts. This may strike one as strange, given that there are many products and services being offered in our society that are limited to people who fall within a certain age group. In South Africa, discrimination has become a part of our everyday lives, whether it be based on gender, sexual orientation, religion, race or even age. However, one has to remember that the Constitution was enacted to protect the people of South Africa, amongst other things against discrimination as well.

Age discrimination in the field of insurance is a phenomenon that goes greatly unnoticed. Certain insurance companies only offer life insurance to persons under the age of 70. Childbirth cover for a woman is capped at the age of 39, which is very young considering the amount of women still having children normally above the age of 39. The most shocking thing is the difference in the amount that a premium costs between a person who is 21 and a person who is 41.

In South Africa, there is no specific legislation regulating the degree of “differentiation” allowed regarding the provision of insurance to persons of different ages. Australia and the United States of America however does have such laws and the amount of age discrimination matters in these countries are extremely low. South Africa thus needs to enact such a piece of legislation to regulate age discrimination.

However, there is a test that South African courts use to determine if the said discrimination is fair or not. This test was established in the well-known court case, Harksen v Lane NO & Others 1998 (1) SA 300 (CC). The test is known as the Harksen v Lane test. The test entails that there are two questions to be asked: Firstly, has there been any differentiation between a persons or groups of persons? If the answer to this question is yes then the second question is whether there is a rational and justifiable reason for the differentiation. If the answer to this second question is no, then the differentiation amounts to unfair discrimination.

Section 9 of the Constitution of the Republic of South Africa specifically protects the people of South Africa against unfair discrimination, but we have to bear in mind that section 36 provides us with a limitations clause which allows certain entities to differentiate against certain persons or groups of persons. Factors are taken into account to determine whether the differentiation is justifiable. Section 36 and the factors read as follows:

  • The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—

(a)  the nature of the right;

(b)  the importance of the purpose of the limitation;

(c)  the nature and extent of the limitation;

(d)  the relation between the limitation and its purpose; and

(e)  less restrictive means to achieve the purpose.

  • Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

One also has to remember that we are consumers making use of the services of insurance companies and the Consumer Protection Act therefore also finds application in this instance. In section 8, which deals with equality, the Consumer Protection Act states the following:

  • Subject to section 9, a supplier of goods or services must not unfairly—
  • exclude any person or category of persons from accessing any goods or services offered by the supplier;
  • grant any person or category of persons exclusive access to any goods or services offered by the supplier;
  • assign priority of supply of any goods or services offered by the supplier to any person or category of persons;
  • supply a different quality of goods or services to any person or category of persons;
  • charge different prices for any goods or services to any persons or category of persons;
  • target particular communities, districts, populations or market segments for exclusive, priority or preferential supply of any goods or services; or
  • exclude a particular community, district, population or market segment from the supply of any goods or services offered by the supplier, on the basis of one or more grounds of unfair discrimination contemplated in section 9 of the Constitution or Chapter 2 of the Promotion of Equality and Prevention of Unfair Discrimination Act.

There is no doubt that we do have protection against discrimination when it comes to the provision of insurance. All it takes is to know which rights we have that are protected in the Constitution as well as other legislation such as the Consumer Protection Act. Don’t just accept anything that insurance providers state to you – make sure that whatever they offer you does not amount to unfair discrimination. Ensure that you are fairly insured.

 

TARIEN VAN DYK

CANDIDATE ATTORNEY

Burden Swart Botha Attorneys Pretoria

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