By Michele van Eck

Writing in plain language means using language that is clear, effective and understandable to the reader. It is understood by the reader the first time around and it is the most effective way to communicate to ensure that the message being conveyed is not misunderstood.

The Consumer Protection Act 68 of 2008 has brought legal drafting under the spotlight, in particular the need to use plain language in legal documents. The Consumer Protection Act is not the only legislation that requires the use of plain language: The National Credit Act 34 of 2005 and the Companies Act 71 of 2008 also require the use of plain language in certain documentation.

The Consumer Protection Act (s 22), the National Credit Act (s 64) and the Companies Act (s 6(5)) essentially have the same requirements for plain language, save in respect of which documents the requirements apply. In essence, a document will be in plain language:

If it is reasonable to conclude that a person of the class of persons for whom the document is intended, with average literacy skills and minimal experience in dealing with that particular subject matter, could be expected to understand the content, significance and import of the document without undue effort, having regard to –

• the context, comprehensiveness and consistency of the document;
• the organisation, form and style of the document;
• the vocabulary, usage and sentence structure of the document; and
• the use of any illustrations, examples, headings or other aids to reading and understanding in the document.

These requirements are, at best, subjective and there appears to be no tangible, objective measure to determine whether or not a document is in plain language.

What is apparent from this legislation is that the reader’s understanding is key to whether or not a document can be considered to be in plain language. Traditionally, legal practitioners have drafted documents for the benefit of the courts and based on how an adjudicator would interpret them. With the new requirements of plain language, the legislature has created a dual audience for legal practitioners to consider when drafting; the first being the reader or consumer and the second being the courts.

It therefore seems clear that before embarking on any form of drafting exercise, the intended audience of the document must be considered. The following factors could influence the language used and the style adopted:

• Age

The average age of the reader will influence how easily a document is interpreted.

• Education

The education of the reader will have an impact on the use of jargon, industry-specific

terminology and the type of language used. For example, the language use between two doctors will be very different to the language used between a doctor and a patient.

• Literacy level

The simplicity of language and sentence structure will have to be adapted when considering the average literacy level of the reader.

• Language

Whether the reader predominantly speaks first, second or third language of the language in which the document is drafted will influence how easily the document is understood. The drafting style will have to be adapted accordingly.

The following guidelines can assist in drafting documents in plain language:

• Use short sentences.
• Use headings to guide the reader through the document.
• Use diagrams, illustrations and tables, where possible, to enable easy dissemination of information.
• Use bullet points and lists where possible. This makes the document easier to read.
• Use short paragraphs. The comprehension of ‘bite-size chunks’ is easier to interpret than blocks of sentences, which can be overwhelming.
• A clear and well-thought-out layout helps in the understanding of the document.
• Remove unnecessary and repetitive words.
• Use the active voice instead of the passive voice. For example: ‘He drew up the contract’ versus ‘The contract was drawn up by him.’
• Use pronouns such as ‘I, you and we’. Readers will find it easier to identify with the document.
• Where possible, remove the use of jargon, technical terms and Latin phrases.

When drafting legal documents, it is important to consider how these are presented and will be understood by the average reader. To ensure full compliance with legislative requirements, plain language cannot be ignored.

• See also 2011 (Dec) DR 22.

Michele van Eck BCom (Law) (RAU) LLM (UJ) PG Dip Draft and Interp Contracts (UJ) Dip Corp Law (UJ) is a legal adviser in Johannesburg.

This article was first published in De Rebus in 2012 (July) DR 21.