EU Directive Prohibiting Gender-Based Insurance Rating: Would a South African Court Follow Suit?

Abstract

The decision of the European Court of Justice in Association belge des Consommateurs Test-Achats ASBL, Yann van Vugt, Charles Basselier v. Conseil des ministres, Judgment of the Court of Justice (Grand Chamber) of 1 March 2011 Case (C-236/09) sparked international interest and concern as it prohibited the use of gender as a rating variable in the access to and the supply of goods and services. With specific reference to motor-vehicle insurance, gender is widely used to differentiate for purposes of accurate risk classification. South African motor-vehicle insurers use, inter alia, gender as a rating variable to classify risks into certain classes and to determine insurance premiums. A South African court is still yet to decide whether the use of gender as a motor-vehicle insurance rating variable amounts to unfair discrimination or not. In light of South Africa's history of discrimination, case law and equality legislation reflect a deep commitment to substantive equality. This article explores, taking into account a South African court's approach to equality, whether the outcome may be similar to the decision of the European Court of Justice or not.