Plain-language contracts: challenges and opportunities

• Jurisdiction: South Africa
• Pages: 95-127
• Published date: 20 August 2019
• Author: Elizabeth de Stadler
• Date: 20 August 2019

PLAIN-LANGUAGE CONTRACTS:

CHALLENGES AND OPPORTUNITIES

ELIZABETH DE STADLER*

Director, Novation Consulting (Pty) Ltd, and Senior Associate

Esselaar Attorneys

LIEZL VAN ZYL

†

Manager: Communication Design, Stellenbosch University

Language Centre

Abstract

South African consumers have had the right to plain-language consumer

contracts since 2011. However, f‌ive years later, the approach to drafting

plain-language, consumer-facing legal documents is often still superf‌icial

and formulaic. The result is that consumers are still made vulnerable by

poverty, illiteracy and a limited ability to understand the language in

which consumer contracts are drafted. This leads to the social exclusion of

a large part of the South African society, or a so-called Information

Apartheid. Why has the right to plain language not translated into

understandable language? We will argue that the roots of the problem can

be found in the nature of the legal profession and a failure to merge the

principles underlying sound legal practice with the linguistic principles of

document and information design. There is an inherent tension between

the principles of document design and the fundamentals of legal practice:

effective document design requires that the audience and their needs lie at

the heart of the approach to drafting, but, by comparison, legal profes-

sionals are paid to protect their clients against consumers. This adversarial

legal framework creates a conf‌lict of interest between legal writers and

their readership. However, it also ref‌lects a zero-sum understanding of

complaint (or risk) management, and a failure to appreciate that writing

in plain language can mitigate risk. What then is plain language and how

can it be achieved, given these challenges? The def‌inition of plain language

in section 22 of the Consumer Protection Act requires that contracts be

understood by the ‘ordinary consumer of the class of persons’ [for]

whom’ the contract is written. However, the plain-language movement

has been undermined by the fact that the legal profession is unaccustomed

*BA LLB (Stell), LLM (UCT).

†

BA Humanities, MPhil Document Design (Stell).

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(and often ill-equipped) to write with the reader in mind. This is because

the skill set required to truly achieve reader-friendly contracts, while still

managing the supplier’s risk, is inter-disciplinary; it requires knowledge

not only of the law, but also of document-design principles and the tools

which document designers use to understand the consumer.

Keywords: consumer protection; Consumer Protection Act; unfair con-

tract terms; plain language; document design; usability testing.

‘Plain English is the style of Abraham Lincoln, and Mark Twain, and

Justice Holmes, and George Orwell, and Winston Churchill, and E.B.

White. Plain words are eternally fresh and f‌it. More than that, they are

capable of great power and dignity: ‘‘And God said, Let there be light: and

there was light. And God saw the light, that it was good.’’’

1

I THE PROBLEM WITH PLAIN LANGUAGE

The Consumer Protection Act 68 of 2008 (CPA) came into force on

1 April 2011. The CPA gives the consumer the general right to disclosure

and information.

2

Specif‌ically, the consumer is entitled to information

in plain and understandable language.

3

Although many attorneys may only have started thinking about plain

language after its inclusion in the CPA, it is not a new concept and is not

unique to the legal profession.

4

Plain language is quickly becoming an

independent f‌ield, with professionals from across continents and disci-

plines working together to conduct research and produce guidelines for

plain-language drafting. Disciplines such as document design, informa-

tion design, linguistics and anthropology each have a unique contribution

to the advancement of the f‌ield, and lawyers can learn a lot from not only

the research that has already been done, but also the collective experience

of those who have been practicing the art of plain-language drafting for

many years.

Why then are so many consumer contracts still written in impen-

etrable language? A common answer is that attorneys and their clients

write in impenetrable language in order to take advantage of consumers’

1

Kimble, ‘Answering the critics of plain language’ (1994–95) 5 Scribes Journal of Legal

Writing 51 at 53.

2

Part D.

3

Section 22.

4

Jensen, ‘Optimising comprehensibility in interlingual translation: the need for intralin-

gual translation’ in Maksymski et al (eds), Translation and Comprehensibility (Frank & Timme

2015) 163 at 169.

(2017) 29 SA MERC LJ

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inability to understand the contract.

5

This is after all one of the reasons

why consumer-protection instruments such as the CPA insists on the

use of plain language. However, often even honest attorneys f‌ind it

challenging (if not impossible) to write in plain language despite

sincerely attempting it. So, in addition to requiring plain language in

legislation to trap those who use complex language for malicious

reasons, it is imperative to understand the challenges which impede

other attorneys’ ability to draft in plain language:

a. There is a tension between the principles of document design

and the fundamentals of legal practice. Effective document

design requires that the audience and their needs must lie at the

heart of the approach. By comparison, attorneys are paid to

protect their clients against consumers. This adversarial legal

framework (where suppliers are pitted against consumers)

creates a conf‌lict of interest between the legal practitioners and

their readership and places too much emphasis on ensuring that

contracts will stand up in court. There is a failure to understand

that simply writing in plain language can mitigate risk by

creating a favourable impression of the supplier, managing

consumers’ expectations and reducing complaints.

b. Much of the early criticism of the plain-language standard in the

CPA was that it is impossible or impractical to expect legal

practitioners to identify the audience of legal documents. This is

largely the result of the fact that attorneys are not trained in

identifying and understanding target audiences in the same way

that information designers are. This illustrates a general problem

with the current approach to plain language: in many cases it is

not inter-disciplinary. Legal documents are still seen as the sole

dominion of attorneys. The principles to ensure the eff‌icacy of

documents that have been used for decades in f‌ields such as

sociology, psychology, marketing and document design, are

disregarded.

c. Attorneys are often not in the room when important decisions

regarding the strategic content or direction of documents are

made, either because they are an expensive resource or because

they are traditionally not involved in operational decisions. In

general, they are asked to check documents after they have been

drafted. This has two implications. First, this means that legal

5

Petelin, ‘Considering plain language: issues and initiatives’ (2010) 15(2) Corporate

Communications: An International Journal 205 at 206.

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