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JOINT COMMITTEE ON THE PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL
25 November 1999
Documents handed out
List of submissions
Submissions Promotion of Equality
The AIDS Law Project indicated that they wanted both HIV and AIDS to enjoy explicit protection in the Bill. If the committee chose not to do this, then their 'safety net' proposal would be to list HIV and AIDS under the heading of 'disability'. The purpose of this was to send a message that the legislature regarded discrimination on the basis of HIV and AIDS as being automatically unfair.
The South African Insurance Association noted that the test of 'unjustifiable hardship' to determine unfair discrimination was unacceptably broad. They proposed that the test of 'reasonableness' was more appropriate. Differentiation between people was an essential component of insurance principles. They identified S43(3) and S44 as the problematic clauses.
The Life Offices Association noted that Sections 20, 25, 26, 43, 44, and 45 of the Bill negate the practicality of running an insurance association. It was their contention that the Bill would result in low income groups not participating in insurance as the premiums would escalate. They claimed this would lead to a downward spiralling of the economy.
The Financial Services Board (FSB) contended that the language in the Bill was too vague and uncertain. This bill would create a funding gap which would have to be satisfied with foreign capital.
The Institute of Retirement Funds of South Africa noted specifically that S43 and S45 would place a huge onus on the funds and on the trustees in charge of managing these risks.
AIDS Law Project
The submission was made by Mr Mark Heywood and Ms Fatima Hassan of the AIDS Law project. They noted that their submission was endorsed by various organisations, amongst others, the National Coalition for Gay and Lesbian Rights and the Equality Alliance.
The primary purpose of their submission was to convince the committee to include HIV and Aids (which they emphasised as being different ) as a specifically listed ground of prohibited discrimination in the Bill. Their argument in support of this proposal was threefold:
- the volume and variety of the discrimination that people with HIV or AIDS are subjected to is so great, that explicit protection in the Bill is warranted;
- the benefits which will arise from explicit protection;
- such protection is consistent with South African law and international treaties.
To demonstrate the variety of discrimination against people with HIV or AIDS a few examples were cited:
- South African Airways requires applicants to prove that they are HIV negative when applying for a position as a cabin attendant.
- insurance companies exclude people with HIV from certain policies on the grounds of 'actuarial risk'.
- where a person who had HIV died in a car accident (a death completely unrelated to his sickness), SANLAM refused to pay a death benefit to his beneficiary (on the grounds that the deceased had HIV).
They noted that government too was not innocent of such arbitrary actions. A case was cited of workers removing children from the care of their mother on the grounds that the mother had HIV. Also, the South African Defence Force refuse to recruit people who have HIV. They noted that such discrimination takes place on a daily basis without a remedy.
The presenters contended that the kind of explicit protection that was being asked for would make prevention of the spread of the disease more effective, it would create conditions which were conducive to openness, promote equality for directly infected people, and prevent arbitrary discriminatory behaviour.
Ms Hassan noted that the only reference to HIV in the Bill was in the part dealing with the Insurance Sector [S26(d)]. She said this was both 'unfortunate and ill-advised'. The United Nations had passed a resolution for the protection of HIV people, which resolution had been unanimously accepted by 59 states. Further, the discrimination of people with HIV was prohibited by human rights standards and the essential component of the human rights approach to AIDS was the adoption of anti-discrimination legislation. The South African approach was on par with this international standard as the South African Law Commission had published three reports wherein they recommended legislation for the protection of people with HIV and AIDS.
ALP proposed that HIV and AIDS be specifically listed as a ground of prohibited discrimination in the Bill. If the committee chose not to do this, then the next best thing would be to refer to HIV and AIDS under the heading of 'disability'.
They made it clear that, whichever option the committee chose, it was essential that HIV and AIDS enjoy specific listing in the Bill as non-listed grounds had less weight attached to them and enjoyed less advantage than listed grounds. They appealed to the committee not to simply rely on 'the natural progression of the law'.
Ms Tsheole (ANC) asked ALP if they supported the idea that HIV be considered a notifiable disease. She explained that many infectious diseases, such as TB and polio have been considered as such in the past, the purpose of which was to help government provide assistance to those who were infected and also to reduce the stigma associated with the diseases. She asked specifically if they wanted notifiability included in the Bill.
Mr Heywood replied that there had been extensive discussions on this issue and, while ALP supported the underlying rationale, which was greater openness, it did not support the concept of notifiability for AIDS. The reason for this stance was that notifiability might have the opposite effect, in that, compelling people to report would add to the discrimination and would drive the epidemic further underground. If this happened, then the results of the notifiability would in any event be inaccurate and unusable.
Dr Davies (ANC) asked for ALP's response to the justification used by insurance companies that people with AIDS had a shorter lifespan.
Ms Hassan responded that what they were asking for was the explicit inclusion of HIV and AIDS in the Bill. She noted that the effect of such inclusion would not be absolute, unlimited rights of people with HIV or AIDS. Thus, accepting their proposal would provide greater protection for infected people but those rights would still be subject to the usual limitations which apply. She warned that if the insurance companies were allowed to rely on their proposed justification then the health sector too would be able to use this argument. Thus, it would be a dangerous precedent to set.
Ms Camerer (NNP) wondered whether the fact that AIDS was being singled out from other diseases for inclusion in the Bill was not in itself 'inherently discriminatory'.
Ms Hassan stated that this was not so. She explained that HIV attracts a unique type of discrimination. It leads to discrimination in terms of the provision of financial services, promotion in the workplace, training and access to education. Clearly, there is discrimination on two levels: the community level and an 'institutionalised formal discrimination'. Because of these circumstances specific inclusion of HIV and AIDS in the Bill would not amount to exceptionalism or inherent discrimination. She added that including it in legislation would also be in keeping with the international trend.
A committee member asked if protection for people with HIV or AIDS, although not explicitly listed, was not sufficiently covered by other grounds in the Bill.
ALP noted that explicit protection in the Bill would foster a climate of legal protection for people who disclosed their HIV status. A failure to give effect to such protection would amount to a missed opportunity to confirm equality for 3.5 million people. By explicitly listing the disease the legislature would send a sign that they regard discrimination as automatically unfair. The effect of this is that the burden of proof will change. (She explained, that , as with the constitutional clause on equality, where a ground is listed, there is a presumption of unfairness which must be rebutted by the defendant; where a ground is not listed, the onus is on the plaintiff to prove that there was in fact an unfair discrimination).
Mr Pieterse (ANC) asked whether inclusion as proposed would mean that hospitals would be forced to dispense expensive drugs to patients.
Mr Heywood responded that this would not happen. He explained by making reference to the case of Soobramoney (Constitutional Court decision). Here the court stated that there was not an unlimited right to health care. Our Constitution only provides for the right of access to health care within its available resources. Thus the right of access to health care is subject to reasonable limitation.
In response to other questions by committee members the following points emerged:
- Mr Heywood stated that he did not believe that the automatic exclusion of all people with life diseases from certain insurance policies was fair. He noted that it was incorrect to simply assume that a person with HIV would follow a routine death. Progress had been made in respect of treating the disease and 'HIV status alone [could not be used as a] marker, as it says nothing about [the health of that person]'.
- If a person has HIV or AIDS and that person refuses to inform his spouse of his condition then there is an ethical and legal duty on the medical practitioner to do so.
The Chairperson indicated that there was not enough time to take further questions.
South African Insurance Association
The Association deals with short-term insurance and not life cover. Their overall contention was that the Bill went beyond what is necessary and if it was passed as is, the solvency of insurance associations would be affected.
They explained how they used the concept of differentiation between people:
- Many claims arose from the under 25 age group.
- Single people have a higher incidence of insurance claims than married people.
- Women have a lower incidence of claims than men.
- Certain types of vehicles are more likely to get stolen than others.
- The area where a person lives is also significant; for example, there is a higher incidence of theft in Kwazulu Natal than in the Free State.
They noted that the Constitution does not allow unfair discrimination, and, in their defence, noted that they do not unfairly discriminate, they merely differentiate in favour of people.
They stated that the essence of insurance is that the transfer of risk must be profitable and marketable and referred to insurance legislation in Canada, Australia, and the USA to support this point. To enable them to be profitable, they must be allowed to differentiate. To support their contention that differentiation should be allowed, reference was made to the Soobramoney case and also Pretoria v Walker (both Constitutional Court cases where it was decided that fair discrimination was allowed).
Specifically the test of 'unjustifiable hardship' was unacceptable as the concept was too broad. S43(3) and S44 were identified as the only problematic clauses. They said that they could not accept these as it would result in serious problems for the short term insurance industry.
One proposal was that "insurance" be defined in accordance with the Insurance Act. They also proposed that the test of 'reasonableness' was more appropriate than 'unjustifiable hardship'.
As the content of the rest of the submissions overlapped, all the organisations present their submissions first, followed only then by discussion.
Life Offices Association
Mr G Joubert noted that Sections 20, 25, 26, 43, 44, and 45 of the Bill negate the practicality of running a professional insurance association. Another representative stated that the Bill in its current form would result in a catastrophe as low income groups would not be able to access insurance because the premiums would escalate. Legislation is unnecessary as risk insurance is based on consolidated principles so that if an insurance company oversteps its bounds, it is easy to take action against it based on these principles of insurance.
A specific problem would be ensuring there were sufficient funds to pay claims when they became due. As in order for insurance to work, the insurance must cover unknown or unexpected risks. Thus, a 95 year old man would be charged more than a 25 year old because the risk of death was greater. This was the essence of the insurance dynamic.
The Chairperson interjected to ask how they deal with the actuarial analysis on HIV and AIDS. In reply they used the example of diabetes. This was first considered an uncontrollable illness. With advances in the medical field, a controlled diabetic can now get insurance at standard rates. They added that with advances in the medical field, they are hopeful that AIDS patients would be able to get better insurance in the future.
The Chairperson followed up his question by asking what the approach to this issue is in other countries. They replied that the current prognosis was not good as the medicine used was not extending the life of patients for long. They added that should people who feel that they are close to death start buying insurance then premiums will wildly increase and insurance would become unaffordable. In order for insurance to work the risk must be relatively small.
Financial Services Board
Mr A Swanepoel and his delegation contended that the language in the Bill was too vague and uncertain. The transfer and the underwriting of risk was noted as being the essence of the insurance industry. With the current Bill, a funding gap would exist which would have to be satisfied with foreign capital.
They noted that if differentiation was not allowed then the effect would be that low risk people would be subsidising people who were categorised as high risk. This would prompt people to remove themselves from the market and the premiums for those remaining in the market would have to be increased.
Institute of Retirement Funds of South Africa
Mr R Stevenson said that the retirement fund industry operates in the same manner as the insurance industry. Thus, all the risk management factors which were enunciated in the other submissions apply to the RFSA as well. Specifically S43 and S45 would place a huge onus on the funds and on the trustees in charge of managing these risks. He noted also that there was a lack of clarity regarding S28 and S29 of the Bill.
Dr Davies (ANC) stated that the Bill in its present form did not purport to prohibit all forms of differentiation. He referred the delegates from the Life Offices Association to their submission and asked why they specifically requested that they be allowed to discriminate on both the grounds of sex and gender. He explained to them that gender in the legal context referred to the stereotypes and social connotations attached to a person's sex, and wanted an explanation of why they would want to discriminate on this ground?
A member from SAIA responded that the differentiation based on sex was essential as their research had shown that, compared to men, there was a lower risk of women being involved in car accidents. He stated that the ground of gender was not an essential one.
An ANC committee member commented that the contention that if the Bill was passed in its present form, it would result in an economic catastrophe was irresponsible and ridiculous as there was no place in the Bill where it was stated that insurance associations could not act on the basis of actuarially sound principles. They would still be allowed to discriminate, only, these discriminations had to be fair. He criticised them for their narrow definitions of words such as 'dependant'', and 'family' and indicated that HIV and AIDS were not exactly the same thing, yet insurance associations had grouped them as one and the same.
The response to this criticism was that in order for insurance to make a profit, they have to be able to differentiate between people based on the level of the risk which that person was facing (for example, someone with HIV was at a higher risk of dying than someone without HIV). If people who are at a high risk were covered, then, in order to cover the paying out of such sums, the premiums would have to go up. If premiums go up, people who are at low risk would feel that they are in a sense subsidising those persons who are at high risk and would put their money elsewhere. The result of this would be that the industry would collapse.
The Chairperson stated that this did not answer the question as the Bill allowed discrimination, it only outlawed unfair discrimination.
A panel member jumped in at this point and indicated that the true problem that they had with the Bill was the test which was being set for unfair discrimination in S43. He indicated that reference was made to 'unjustifiable hardship' and noted that this test was 'too hard'. He criticised the test for being too broad and suggested that they rather use the test of reasonableness. The 'reasonableness test' was described as being something that was tried and tested, and, as it was a concept that had precedents it would be easier for them to work with. He added that if S43(3) and S43(4) were removed from the Bill then they would all 'be on the same wavelength'.
Continuing their argument for less restrictive legislation on unfair discrimination, the panel member stated that if an insurance company had made a decision which was challenged in court on the basis that it amounted to unfair discrimination, then the onus would be on the insurance company to justify that discrimination as being fair. He stated that, in this regard, the courts were very progressive in the manner in which definitions were interpreted. To demonstrate his point he noted that in a recent case a court had decided that the word 'family' included a gay couple, and in another case, a court found in favour of a lesbian couple. Aaccordingly, it was not something that the committee needed to legislate on in the particular circumstances.
They added that the committee had to note that the business of insurance had universally accepted principles upon which they operated. If it became apparent that the principle of discrimination upon which they operated had been taken too far, then a complaint may be brought, a debate could be held about the matter, and, if it appeared that it was necessary, then the Insurance Act could be amended so that the principle of equality was upheld.
An ANC member responded to this by saying that the reason for the Bill was to eradicate discrimination in our country. What had now been suggested by the panel member was a type of self-regulation which could not be allowed. The history of our country is a history of discrimination and this clearly reflects that self-regulation was not effective in the past. Hence there was no reason to believe that it would be effective now.
The panel member responded that the industry was not self-regulatory, and, the fact that it was not, led to a very sectoral approach to the Bill. 'Perhaps', he said, 'the sectoral approach is the right way to go'.
The Chairperson, Ms Botha, stated that she felt that there may be some kind of policing needed if, after five long years of democracy, the insurance industry could come with a delegation of twelve men with no women included.
It was noted by the Chair that the Bill would not go unamended and said that the committee would continue to interact with the industry whilst the Bill was being redrafted. The meeting was adjourned.
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