A Consumer’s Right to Disclosure and Information: Comments on the Plain Language Provisions of the Consumer Protection Act

• Jurisdiction: South Africa
• Date: 25 May 2019
• Published date: 25 May 2019
• Citation: (2010) 22 SA Merc LJ 79
• Author: Mornè Gouws
• Pages: 79-94

A Consumer’s Right to Disclosure and

Information: Comments on the Plain Language

Provisions of the Consumer Protection Act

MORNÈ GOUWS

Klagsbrun De Vries & Van Deventer Attorneys

Pretoria*

1 Introduction

The Consumer Protection Act 68 of 2008 (‘the Act’), signed into law on 24

April 2009, ushers in a new era for consumer protection in South Africa.

When it takes effect on 24 October 2010,

1

it will repeal and replace the

country’s outdated and fragmented consumer protection laws with a single

consolidated statute.

It will also establish a legal framework for codifying a number of basic

consumer rights. These rights, detailed in ch 2 of the Act, are as follows: –

•the right to equality in consumer markets;

•the right to privacy;

•the right to choose;

•the right to disclosure and information;

•the right to fair and responsible marketing;

•the right to fair and honest dealing;

•the right to fair, just and reasonable terms and conditions;

•the right to fair value, good quality and safety; and

•the right of a consumer to have an accountable supplier.

Here I will comment on the plain language provisions of the Act and

propose guidelines for drawing up consumer agreements in plain language.

2 Background

2.1The Need for Plain Language

The need for plain language can be traced back to the sixteenth century

when Edward VI declared that he wished that the ‘superf‌luous and tedious

statutes were brought into one sum together, and made more plain and short,

to the intent that men might better understand them’.

2

Courts and legislatures

*N Dip Police Management (Technikon SA) LLB LLM (Unisa). Klagsbrun De Vries & Van

Deventer Attorneys, Pretoria.

1

Item 2 of Schedule 2 to the Act.

2

Office of the Scottish Parliamentary Counsel ‘Plain Language and Legislation Booklet’(February

2006) at 1, accessible at http://www.scotland.gov.uk/Publications/2006/02/17093804/0.

79

(2010) 22 SA Merc LJ 79

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alike have also recognised the unfairness of enforcing unreadable, incompre-

hensible and non-negotiable agreements without providing a comprehensive

solution.

3

To address this issue, countries worldwide have adopted plain

language legislation.

4

In South Africa, even before the Act was passed, Parliament recognised the

need for legislation dealing specif‌ically with plain language and adopted

several consumer protection statutes.

5

Independent bodies such as the

Banking Association of South Africa also required their members to write

their documentation in plain language. The passing of the Act will cause

similar bodies to react and set similar requirements for their members on the

use of plain language.

2.2Legislation in Plain Language

Nienaber examined the use of plain language in legislation.

6

She appraised

the Equality Act 4 of 2000 for the comprehensibility of its language and

remarked that it is vital that the people affected by the legislation can

understand its contents to enable them ‘to understand what they are entitled to

or what they are required to do to escape penalties’.

7

Writers such as Bekink

and Botha,

8

on the other hand, feel that it is debatable whether legislation

should be drafted to be understandable by the general population.

9

Despite these divergent views it seems that any possible doubts on the use

of plain language in other legal documents, in particular written consumer

agreements, have now been dispelled with the passing of the Act. Section 22

of the Act requires that any notice, document or visual representation which is

required in terms of the Act or any other legislation must be either in the form

prescribed by Act or legislation or in plain language if no form has been

prescribed. The Banking Council of South Africa adopted a Code of Banking

Practice in 2000 with similar provisions requiring all banking contracts to be

revised in plain language.

10

As consumer protection is rooted in plain

language,

11

statutes such as the Long-term Insurance Act 52 of 1998, the

Short-term Insurance Act 53 of 1998 and the National Credit Act 34 of 2005

3

Bernard Black ‘A Model Plain Language’(1980-1981) Stanford LR 255.

4

See, eg, the Consumer Guarantees Act of 1993 (New Zealand) and the Plain WritingAct of 2009

(introduced into the US Senate on 11 March 2009).

5

See, eg, the Electronic Communications and Transactions Act 25 of 2002, the National CreditAct

34 of 2005, and the Alienation of Land Act 68 of 1981.

6

Annelize Nienaber ‘A Search for Clarity in South Africa’s New Equality Legislation’(2001) 46

Clarity 11.

7

Ibid.

8

Bernard Bekink & Christo Botha ‘Aspects of Legislative Drafting: Some South African Realities

(Or Plain Language is Not Always Plain Sailing’, a pre-copy-editing, author-produced PDF of an article

accepted for publication in Statute Law Review following peer review (https://www.up.ac.za/dspace/

bitstream/2263/3430/1/Bekink_Aspects%282007%29.pdf).

9

Idem at 27.

10

See the Banking Association of South Africa’sCode of Banking Practice in par 2.5.

11

Stephen M Ross ‘On Legalities and Linguistics: Plain Language Legislation’ (1981) 30 Buffalo LR

318.

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