In search of plain language

Few of the provisions of the CPA have been more perplexing to attorneys than section 22, which deals with the plain language standard. Perhaps this is because, ironically, the section which explains what plain language is not written in plain language. Perhaps it is just because attorneys are not used to drafting in this way. Whatever the case may be, consumer contracts must be in plain language. You will not find this in section 22; this obligation is created by section 50(2) which provides that if a consumer agreement is in writing (as most are, but even if they are not a consumer is entitled to demand it) it must be in plain language.

Plain language also plays a role in determining whether a particular term of an agreement is considered unfair to the consumer in terms of section 48. Section 52 lists the extent to which the plain language requirement was satisfied as one of the factors which a court must consider when considering the fairness of a term.

So, what will happen if a contract is not in plain language? This is by no means certain from the CPA. (It is not clear whether a failure to meet the plain language requirement will make an agreement void per se. The wording of section 52 suggests that it is just one factor to be taken into account when determining whether a term is unfair and consequently void. The position may be different for exemption clauses (see section 49(3).) Practice, however, tells us that apart from the distress which it may cause a supplier’s consumers, the repercussions for that supplier’s image and the increased queries and complaints, the NCC may order (and have been doing so) suppliers to amend their terms at very short notice. More distressingly, it appears that the NCC believes that it has the power to prescribe what the reformulated term must look like – this impression was created by the papers in all the cases against the cell phone providers.

But what is plain language? The use of the word ‘plain’ is unfortunate. This is because ‘plain’ is equated to ‘simple’, which strengthens the misconception that translating a document into plain language involves ‘dumbing down’ the document. This is not the case, nor should it be. The word ‘plain’ in this context should rather be equated to ‘understandable’ or ‘accessible’. This means that it is entirely possible to translate complex legal concepts or documents into more understandable or accessible language. The word ‘more’ in the previous sentence is also very important. Plain language is often a matter of degree; it is not a standard that is ever ‘achieved’.  What is plain language for purposes of the CPA? A strict legalistic approach to plain language is not to be encouraged. The plain language movement has been gaining momentum for years in other fields. Reproducing the ‘definition’ of plain language used in section 22 is also not helpful. The definition only becomes accessible when it is broken down into components.

Must the contract be understandable to each individual consumer before the requirement is met? No. The contract must be understandable to an ordinary consumer of the class of consumer for whom the contract (by implication the product or service) is intended. This means that if a particular product or service is marketed to a more sophisticated market a more sophisticated contract will be appropriate. However, this ‘ordinary consumer’ must have minimal experience of that particular transaction and must be of average literacy. The issue of literacy is also addressed in section 40(1), which provides that a supplier must not ‘knowingly’ take advantage of a consumer’s illiteracy or inability to understand the language of the particular agreement. The issue is raised again in section 52, where the parties’ relative capacity, education, experience, sophistication and bargaining position’ are listed as factors in determining the fairness of a particular contract.

How hard must the consumer try to understand the contract? It depends. The consumer must understand the term with ‘undue effort’. When will effort be due? Perhaps when the product or service is particularly expensive, complex in nature or important, one can expect a greater effort from the consumer or perhaps even that the consumer will seek independent advice.

When viewed in this fashion several myths about plain language are debunked. It is not an entirely subjective standard. In fact it is often possible to clearly identify the class of persons to whom a product or service is marketed, as well as their characteristics, including education and sophistication. In fact, many suppliers have market research companies who are appointed entirely for that purpose. It is also clear that the requirement is adaptable to different circumstances. The standard may differ depending on the sophistication of the product or service. The level of simplicity of the terms for the sale of a refrigerator need not be the same as a contract for the sale of insurance.

How well must the contract be understood? Very well. The consumer must understand the ‘content, significance and import’ of each term. The difference between these terms is subtle if not non-existent, but it is clear that the consumer must understand both the express and implied meaning of a term and its legal consequences.

I will not discuss other elements such as the context, comprehensiveness, consistency, organisation, form, style, vocabulary, sentence structure and the use of illustrations, examples, headings or other aids to reading and understanding, which are mentioned in section 22. These will be addressed in the monthly plain language tips. However, the importance of the design of the document must never be underestimated. Plain language is not only about the words.

(This article appeared in the Consumer Law Review April 2012 (www.jutalaw.co.za).)

[Ruth Baitsewe wrote a follow-up article, ‘Plain language: More than just “plain” words’ in the June edition of the Consumer Law Review. If you are not a subscriber you can become one by creating a profile at www.jutalaw.co.za and selecting to receive the monthly publication (free of charge). Archived editions are also available there.]

About the Author:

Elizabeth de Stadler
Elizabeth is the quirky one in the company. She specialises in all things Consumer Law, plain language drafting and designing and delivering training. She prides herself on being slightly out there and bringing a fresh perspective to compliance issues. She has a Masters (cum laude – the nerd) in Consumer Law. Elizabeth met Paul in 2011 and joined Esselaar Attorneys (she is still a senior associate at the firm). In 2013 they founded Novation Consulting together. Elizabeth is a bit of a nerd. She is the editor of the Consumer Law Review (you can get it here for free!) and wrote A Guide to the Protection of Personal Information Act with Paul. She is also the author of Consumer Law Unlocked, a co-author of the hefty Commentary to the Consumer Protection Act and wrote chapters on the Consumer Protection Act in The Law of Contract in South Africa and The Law of Commerce in South Africa. She is currently working with Liezl van Zyl from the Stellenbosch University Language Centre on Plain language legal drafting, which will be published in 2017. Elizabeth loves Lego, sneakers, zombies and white wine. She hates comic sans font, sweet potato and most other attorneys. She is allergic to suits and ‘office shoes’ because of the years she worked at Webber Wentzel. She is very scared of moths. It is a thing – read about it. Want to find out more about Elizabeth? Check her out on LinkedIn. Better yet, contact her on elizabeth@novcon.co.za or (021) 481 8004.