Plain language: it’s not a choice

We have been plain language fanatics since 2004 when Elizabeth de Stadler and Liezl van Zyl attended the same information design course at university.* Back then, the plain language cause was quite niche, but today, it is required under many different pieces of South African legislation. So what changed?

In 2011, the South African Consumer Protection Act, or CPA, came into force. The CPA promotes fairness, openness, and good business practices, which means it also requires suppliers and service providers use plain language for all legal content, including terms and conditions, disclaimers, signs, and privacy notices.

Since then, many other laws, policies, frameworks and codes have required that plain language be used. Here are just a few examples:

• The National Credit Act.
• The Long- and Short-term Insurance Acts both require insurers to use plain language to avoid uncertainty and confusion (although some insurers still have work to do!).
• The Companies’ Act says that prospectuses, notices, disclosures, and documents must be written in plain language.
• The Code of Banking Practice requires banks to give information on products and services in plain language.
• Treating Customers Fairly has led to the use of plain language. This framework’s self-assessment even asks financial services providers to ‘assess the clarity, appropriateness and fairness of product information’.

Ironically, the definition of plain language in the CPA isn’t that plain. That’s why we’ve summarised the main elements for you.

The CPA says that a document is in plain language if:

• an ordinary consumer of the class of persons for whom the legal content is intended;
• with average literacy skills and minimal experience;
• could be expected to understand the content, significance and importance of the document’s legal content.

How do courts, Ombuds or the National Consumer Commission decide whether a document is in plain language? They look at the language and the visuals.

Transforming legal content to meet this definition is often called legal or contract design, a topic we have written about before.

What happens if your legal content (like terms and conditions) is not written in plain language? Quite a lot. It might not be enforceable, which means that you, as the supplier, cannot rely on your terms and conditions.

Aside from these lawyer-y reasons, not using plain language comes with other risks, for example:

• Your customers could think you have something to hide because you use obscure language.
• Your customers ask questions because they don’t understand what you are saying. This costs money as your employees (e.g., in your call centre) must answer unnecessary questions.
• You risk being vague (plain language is more precise).
• You waste everybody’s (reading) time with long and complex legal content.

It’s clear (pun intended) that plain language is more precise and economical; even lawyers and judges prefer plain language (thank you, Joseph Kimble, for doing the research!**)

Surely, the South African Constitution is the most miraculous example of plain language legal writing. Here is what Joseph Kimble wrote about it:

‘The language throughout is plain. Some may (incorrectly) consider it simplistic. In fact, to draft in this way requires a huge dedication of resources, highly skilled and dedicated drafters, and a firm commitment to the goal of clarity. Plain language done well is extremely hard work, yet worth it. For 25 years, the courts have had little difficulty interpreting and applying the Constitution – a testimony to both its clarity and its legal rigor. The Constitution has been effective as a social, political and legal text. And at the same time, it can be understood by the citizens of the new country it formed.’

May all legal writers follow in these footsteps!