In a recent decision made by the Medical Schemes Council, it was decided that a medical scheme is entitled to charge additional tariffs to operate on overweight persons. One wonders if the decision will be challenged in a court of law as the decision may be considered discriminatory.

South African law allows discrimination in certain contexts (as all rights may be limited in terms of the Constitution) but in other contexts discrimination may be considered as unfair and therefore as unlawful.

Should the Council’s decision be challenged on the basis on constitutionality there will certainly be given consideration to section 9 of the Constitution:

In terms of section 9 of the Constitution everyone is equal before the law and has the rights to equal protection and benefit of the law.

The state may not 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.

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