Simply unclear

November 1st, 2012
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Is the legislature an obstacle to plain language?

By Bevan Frank

As the plain language cause continues to gain momentum both globally and in South Africa, the challenges for drafters, particularly those in the legal fraternity, remain high.

South Africa has one of the most impressive constitutions in the world. It was specifically created and written in plain language so that South Africans from all backgrounds would be able to understand its provisions. The right to information that can be understood by all citizens has been a vital part of the legislature’s aims in enacting progressive new legislation over the last few years.

Despite a flurry of much-needed legislation since the advent of democracy, the legislature has not embraced the very plain language principles that it has sought to espouse. Various clauses in several Acts are drafted in unclear and ambiguous wording, thus creating an obstacle in itself to the use and understanding of plain English.

What road of interpretation does one head down if the very plain language rules that are supposed to govern methods of interpretation are themselves vague and uncertain? How specific should legislation be in advocating the plain language cause; that is, language that is simple, user-friendly and easily understandable?

The concepts of plain language and clear information have featured in some earlier legislation, such as the Long-Term Insurance Act 52 of 1998, the Short-Term Insurance Act 53 of 1998, the Promotion of Access to Information Act 2 of 2000 and the Electronic Communications and Transactions Act 25 of 2002.

More recent Acts in which plain language has been stipulated include the Consumer Protection Act 68 of 2008 (CPA), the National Credit Act 34 of 2005 (NCA) and the Companies Act 71 of 2008.

These will be elaborated on below.

Consumer Protection Act

This groundbreaking legislation at the helm of the consumer revolution in South Africa has moved the power to consumers. Consumers can make informed choices about the products and services they want without being seduced by misleading and deceptive business practices. The consumer has a right of recourse resulting from circumstances arising out of heavy legal wording that could have been simplified. In the past the onus was on ‘buyer beware’; today the burden has shifted to the seller.

Section 22 of the CPA advocates plain and understandable language. According to s 22(1), the producer of a notice, document or visual representation needs to ensure that it is in the prescribed form. If no form is prescribed, then the words need to be in plain language.

Section 22(2) states that ‘a notice, document or visual representation is in plain language if it is reasonable to conclude that an ordinary consumer of the class of persons for whom the notice, document or visual representation is intended, with average literacy skills and minimal experience as a consumer of the relevant goods or services, could be expected to understand the content, significance and import of the notice, document or visual representation without undue effort, having regard to –

(a)     the context, comprehensiveness and consistency of the notice, document or visual representation;

(b)     the organisation, form and style of the notice, document or visual representation;

(c)     the vocabulary, usage and sentence structure of the notice, document or visual representation; and

(d)     the use of any illustrations, examples, headings or other aids to reading and understanding.’

According to s 22(3), the Companies and Intellectual Property Commission may publish guidelines for methods of assessing whether a notice, document or visual representation satisfies the requirements of subs (1)(b). Section 22(4) states that these guidelines may be published for public comment.

After an analysis of s 22, I submit that the only thing that is clear is that the section poses more questions than answers. For example:

  • What is an ‘ordinary consumer’ and what is meant by ‘class of persons’? Economic class? Educational class? Both? Neither?
  • How can one define ‘average literacy skills’, particularly in a country such as South Africa where illiteracy is high, and how much language skill should one have before being deemed literate? Is the Act aimed at the average consumer (higher literacy) or the average South African (lower literacy)?
  • How much experience does a consumer need in order to have ‘minimal experience’?
  • At what point is an understanding of the relevant words deemed to have taken place?
  • How much effort can be said to be ‘undue effort’? Does one need to read the document once and be able to understand it straight away, as advocated by the plain English cause, or is it acceptable if the consumer understands the document only after reading it several times? Does ‘undue effort’ mean the person reading the wording does not need the wording to be explained further, for example with the help of an expert, even after reading it several times?
  • Where does one draw the line?

The lack of clarity on these aspects of s 22 serves to highlight the conundrum that many in the legal profession now find themselves in when it comes to plain language drafting. The plain language requirement is found in other clauses too, which need to be borne in mind when examining the CPA.

Section 48 of the CPA relates to the right to fair, just and reasonable terms and conditions. A supplier’s prices, terms and marketing of goods and services must not be ‘unfair, unreasonable and unjust’. In order to determine whether a consumer has been disadvantaged and subjected to something unfair, unreasonable and unjust, one would have to determine whether the relevant wording has been written in plain language.

Section 49 deals with the notice required for certain terms and conditions. Specifically, s 49(3) refers to a provision, condition or notice that must be written in plain language as defined in s 22.

In terms of s 50(2), written consumer agreements need to satisfy the requirements of s 22; that is, be in plain language.

Section 52 deals with the power of the court to ensure fair and just conduct, terms and conditions. Specifically, s 52(2)(g) provides that the court must consider the extent to which any documents relating to the transaction or agreement satisfy the plain language requirement of s 22.

I submit that the constant cross-referencing of these sections makes the subject matter less clear and flies in the face of plain language principles, which advocate clarity and strive for non-repetition.

Furthermore, it is unclear from the CPA whether a term or condition can be deemed invalid if it does not fulfil the plain language criteria but still fulfils other criteria espoused in the Act. Perhaps plain language then becomes one of several considerations in determining whether the consumer has been negatively impacted. If it is just one of the factors, then it may be overlooked, depending on the situation, and in turn does not become a strong influencer in determining what is fair and just for the consumer. If plain language is not a strong influencer, then one needs to ask whether the legislature has made the progress claimed.

When parties become mired in a dispute over plain language interpretation there is scope for the National Consumer Commission to step in. However, if the boundaries for plain language interpretation are themselves vague, how much power did the legislature intend to rest in the hands of the commission? Further, how well versed is the commission in the intricacies of plain language and which parties will ultimately benefit or lose from meagre interpretation of the wording?

When it comes to redrafting, the commission has to date instructed suppliers to alter their terms and conditions without much notice. It is disturbing to note that the commission appears to believe that it has the power to prescribe what the rewritten term should look like. This impression was created in the recent cases against cellphone providers (see E de Stadler ‘The latest news: The NCT makes its first findings’ (2012) April Consumer Law Review (www.jutalaw.co.za, accessed 27-9-2012)).

Further, the National Consumer Tribunal has acknowledged: ‘The rule of law embraces a number of different themes but the most fundamental theme is that administrators must exercise their authority according to the law and cannot exercise it arbitrarily.’

In other words, public administrators, as Goldstone J stated in Dawnlaan Beleggings (Edms) Bpk v Johannesburg Stock Exchange and Others 1983 (3) SA 344 (W), cannot be a law unto themselves (as cited by the National Consumer Tribunal in Cell C (Pty) Ltd v National Consumer Commissioner (NCT) (unreported case no NCT/2737/2011/101 (1)(P), 1-8-2012) (T Woker, D Terblanche, M Maseko)). This needs to be heeded if justice is to prevail in the midst of plain language interpretation.

National Credit Act

The NCA seeks to protect consumers and address imbalances between consumers and credit providers. The Act aims to ‘promote and advance the social and economic welfare of South Africans; promote a fair, transparent, competitive, sustainable, responsible, efficient, effective and accessible credit market and industry; and to protect consumers’.

Section 64 of the NCA deals with the right to information in plain and understandable language. The wording must be in the prescribed form for a particular document or in plain language if no form has been prescribed for that document.

According to s 64, a document is in plain language ‘if it is reasonable to conclude that an ordinary consumer of the class of persons for whom the document is intended, with average literacy skills and minimal credit experience, could be expected to understand the content, significance, and import of the document without undue effort’.

The remainder of s 64 is akin to the plain language clause in the CPA. Similar questions therefore arise to those asked in respect of the plain language clause in the CPA.

In order to fulfil the NCA’s aim, the Act should be interpreted in a way that gives effect to its objectives. Yet, I submit, the NCA itself is steeped in ambiguity that has ruined the plain language cause it seeks to uphold. In Nedbank Ltd and Others v The National Credit Regulator and Another 2011 (3) SA 581 (SCA) Malan JA stated that the NCA ‘cannot be described as the “best drafted Act of parliament which was ever passed” nor can the draftsman be said to have been blessed with the draftsmanship of a Chalmers’ (Chalmers was the draftsman of the English Bills of Exchange Act, 1882).

Malan JA cites ‘numerous drafting errors, untidy expressions and inconsistencies’ that make interpretation of the NCA ‘a particularly trying exercise’ (see also FirstRand Bank Ltd t/a First National Bank v Seyffert and Another and Three Similar Cases 2010 (6) SA 429 (GSJ) at para 10) and notes that the various appeals ‘demonstrate the numerous disputes that have arisen around the construction of the NCA’.

Furthermore, the interpretation of the NCA ‘calls for a careful balancing of the competing interests sought to be protected, and not for a consideration of only the interests of either the consumer or the credit provider’ (Malan JA in the Nedbank case at para 2, referring to BMW Financial Services (SA) (Pty) Ltd v Mudaly 2010 (5) SA 618 (KZD) at para 16 and the Seyffert case at para 10).

Companies Act

The new Companies Act has brought such legislation in line with international trends. The Act promotes transparency, is more flexible than the previous Act and is intended to be less of a regulatory burden. After much debate and disagreement, the relevant wording of the various clauses was finally reached and the number of sections was reduced from 450 to 225.

This Act continues with the plain language thread that is currently running through legislation. Section 6(5) contains a broad definition of ‘plain language’ that needs to be kept in mind when drafting.

Section 6(5) states that a prospectus, notice, disclosure or document is in plain language if someone for whom the material is intended can understand the content and significance of the wording used. This would apply to any reader with average literacy skills and minimal experience in dealing with company law matters; that is, the intended person can be an ordinary person with relatively little exposure to the complexities of company law.

Again, the wording is almost identical to the plain language clauses that appear in the CPA and the NCA. Thus the same questions posed earlier are applicable when it comes to the Act’s interpretation. While the Act and its layout are to be commended, I submit that the plain language definition is not specific enough and that the legislature missed an opportunity to firmly cement its plain language intentions by instead opting for ambiguity and generality.

Conclusion

When legislation is not as clear-cut as it should be, it is necessary to walk down the path of interpretation. It is on this path that the words of Wallis JA in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) (at para 26) should be taken note of:

‘[I]n most cases the court is faced with two or more possible meanings that are to a greater or lesser degree available on the language used. Here it is usually said that the language is ambiguous, although the only ambiguity lies in selecting the proper meaning (on which views may legitimately differ). In resolving the problem, the apparent purpose of the provision and the context in which it occurs will be important guides to the correct interpretation. An interpretation will not be given that leads to impractical, unbusinesslike or oppressive consequences or that will stultify the broader operation of the legislation or contract under consideration.’

While this article has highlighted some of the plain language interpretation issues related to the CPA, the NCA and the Companies Act, it should be noted that these are not the only pieces of legislation mired in ambiguity. Time will be the judge of whether the plain language definitions and other inconsistencies will cause the court floodgates to burst open in a sea of litigation.

When drafting or redrafting any documents in light of relevant legislation, readers are urged to refer to the Acts’ clauses in conjunction with universal plain language drafting principles in order to seek the clarity their clients need.

As the world continues to move away from legalese and as more documents are written and rewritten in plain language, it is hoped that the legislature will start practising what it preaches when it comes to language that is simple, clear and precise.

Bevan Frank BA LLB (UCT) is a plain language practitioner and former attorney in Cape Town.

 This article was first published in De Rebus in 2012 (Nov) DR 44.

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