According to constitutional law expert, Pierre de Vos, as quoted in a leading Sunday newspaper, "South Africa's jurisdiction on equality is different from that of the EU in that its primary focus is not on treatment, but the impact or effect of legislation. If the effect is to perpetuate a stereotype or unproven assumption, then it will not be allowed. However, if statistics can show a factual difference, especially if it works in favour of a group that is traditionally disadvantaged - such as women - then there should be no problem."
Farrell notes that statistically, women are lower insurance risks than their male counterparts. "We have statistical evidence that proves that women are involved in fewer accidents than men and, in respect of motor accident repair costs, the average repair cost involved in repairing an accident damaged motor vehicle that was driven by a woman is less than one driven by a man."
This is further supported by statistics in the UK that state that the cost of the average car claim by an 18-year old man was £4,400, while that for an 18-year old woman was £2,700. In South Africa, the cost of the average car claim by an 18-year old male is R11,997.00, while that for an 18-year old woman is R8,668.00.
"Discrimination implies an arbitrary distinction that is not based on merit whilst differentiation is a distinction based on merit. The entire insurance industry differentiates in terms of age, gender, geography, years of insurance and licence period, for example," says Farrell.
De Vos notes that there is a law against blind people obtaining a driver's licence. "Blind people are disadvantaged, but there is clearly a good reason for this law. In the case of sex discrimination in insurance, women are known to be a more vulnerable group, so the fact that the discrimination works in their favour. I'd be surprised if anything changes."
