The rise of plain and understandable language, which has its origins in sections 2, 3 and 22 of the Consumer Protection Act, is upon us.
The Chinese company Xue Sheng Xi Lie Zhi Chi's safety guide for its 18cm ruler: "This product was easy to burning, aloof the high temperate, please. Because maybe beget any danger and the product's definition distort. The product have some keenness part, so need to prevent bruise. The product only befit measure and study, unable to do other definition's measure. Needed the pater-familias accompany, if the children haven't 3 years."1
The failings of language in legal relationships are well documented within the context of South African jurisprudence. The difficulty that commercial lawyers generally face is using language to ensure a client's best interests are served within the context of contractual relationships.
The terms of contractual relationships, in turn, are sometimes difficult to understand especially when dealing with pro forma contracts that are unilaterally imposed upon consumers who have no choice in the particular wording or language used.
In terms of the Consumer Protection Act No. 68 of 2008 (the CPA), consumers are entitled to receive information about products and services in plain and understandable language. This particular right emerges out of Part D of the CPA and is described as part of the consumer's "right to disclosure and information".
This is all very well and good but what is plain and understandable language and how does one know what this is within the context of contractual relations?
In terms of section 22 of the CPA, there are a number of aspects or elements associated with legally compliant plain and understandable language. Obviously, the precise scope and ambit of section 22 are unknown at this point and will, in all likelihood, be expanded upon and interpreted by the people who are tasked with enforcing the provisions of the CPA including, but not limited to, the National Consumer Commission.
Section 22 refers to notices, documents or visual representations that are required, in terms of the CPA or any other law, to be produced or displayed to a consumer when that consumer purchases certain goods or services.
Unfortunately, or fortunately – depending on your point of view – certain additional terms are specifically defined in section 1 of the CPA. Therefore the complex interplay between sections 1 and 22 of the CPA needs to be reviewed to understand the scope and ambit of "plain and understandable language".
The first term that requires a definition is the word "display". This particular term is defined in section 1 as follows:
"when used –
(a) in relation to any goods, means placing, exhibiting or exposing those goods before the public in the ordinary course of business in a manner consistent with an open invitation to members of the public to inspect, and select, those or similar goods for supply to a consumer; or
(b) in relation to a price, mark, notice or other visual representation, means to place or publish anything in a manner that reasonably creates an association between the price, mark, notice or other visual representation and any particular goods or services".
Obviously, the terms "goods" and "services" also enjoy separate definitions in section 1.
The second term that has a definition dedicated to it in section 1 of the CPA is "visual representation". It means, "any representation or illustration capable of being reproduced upon a surface, whether by printing or otherwise, but does not include a trade mark".
The term "notice" and the term "document" do not have separate definitions in section 1 of the CPA. Therefore section 22(1) of the CPA creates the first criterion in respect of plain and understandable language: it applies to legally prescribed notices or visual representations (i.e. a representation or document that is required to accompany goods or services when the consumer acquires or buys such goods or services).
The balance of section 22 is dedicated to additional criteria that language must meet in order for it to be plain and understandable.
It is important that section 22 be read with the provisions concerning the manner in which the CPA is to be interpreted in section 2 and the purposes of the CPA in section 3 in relation particularly to the so-called "vulnerable consumer".
The various factors referred to in section 22(2) of the CPA may be summarised as follows:
- the reasonable consumer or ordinary consumer of the class of persons for whom the notice, document or visual representation is intended must be viewed from the point of view of the officious bystander who is able to conclude reasonably, (i.e. with reference to particular objective factors pertaining to the particular consumer concerned) that the consumer understood what he or she was buying and the terms and conditions in respect of which the transaction occurred. The criterion is therefore one of reasonableness. Any person adjudicating a consumer complaint will therefore need to apply a test of objective reasonableness on whether or not the language in question is plain and understandable based on the particular characteristics of the consumer concerned;
- the consumer with which section 22(2) is concerned is one with average literacy skills and minimal experience as a consumer of the relevant goods or services. Therefore, the threshold is low for the consumer but high for the supplier to meet in relation to the language used in the terms and conditions concerned;
- the consumer in section 22 must be able to understand the visual representation, notice or document without "undue effort". The term "undue effort" is not defined in section 1 of the CPA. Section 22(2), however, endeavours to explain what is meant. The criterion of "undue effort" is met when the terms and conditions in question comply with the following criteria:
(a) the notice, document or visual representation is viewed both within its own context and the context of the transaction as a whole: its comprehensiveness in explaining the goods or services being sold; its consistency in relation, presumably, to such things as typeface, print, descriptions employed, fine print, general get-up or the use of illustrations; and its compliance with other provisions of the CPA;
(b) the general appearance of the notice, document or visual representation with reference to its organisation, form and its style: which may be a reference to the complexity of language used, the use of particular jargon and legalese or other particular language that is specialist in nature or refers to particular terms that are either not defined within the notice, document or visual representation or would be difficult to define or understand by the average consumer;
(c) the vocabulary usage and sentence structure of the notice, document or visual representation: this may refer to the length of sentences, the particular type of vocabulary and the use of language in relation to provisos or qualifications of general principles or undertakings vis-ŕ-vis the consumer;
(d) the use of any illustrations, examples, headings or other aids to reading and understanding.
The application of the criteria in section 22(2) is complex in so far as the terms in question are not defined in law. Therefore it is difficult to advise precisely when a particular notice, document or visual representation will have met these criteria.
However, section 22(2) is designed to be as flexible as possible in order to take into account every possible relationship between a consumer and a supplier in respect of goods and services.
A great deal of discretion is therefore left to persons tasked with enforcing the provisions of the CPA to determine what is or is not, in any particular circumstances, plain and understandable language. The level of intelligence and education of a particular consumer may very well inform what is plain and what is understandable in any particular circumstances. It must also be borne in mind that section 22(2) assumes all consumers to have average literacy skills and minimal experience as consumers of the relevant goods or services.
In light of the provisions of section 22(2) and pending the guidelines for assessing whether a notice, document or visual representation satisfies the requirements of section 22, a great deal of care must be taken to assess:
- the particular terms and conditions used by suppliers of goods and services with reference to the criteria contained in section 22(2); and
- whether or not the particular terms and conditions are indeed accessible by the particular consumer created by section 22(2).
The averagely literate and minimally experienced consumer is a new animal in South African law. The experience of this consumer will dictate whether or not a particular supplier is able to achieve the obligations imposed by section 22(2) upon him or her. It will also determine the degree to which particular language, which is to form the basis of the transaction, is plain and understandable and whether or not it is sufficient to protect both the interests of the consumer and the supplier. This remark is qualified, however, by the provisions concerning the interpretation of the CPA, which is governed primarily by sections 2 and 3 of the CPA.
Section 2(1) of the CPA directs any interpretation of the CPA to be conducted in a manner "that gives effect to the purposes set out in section 3". Section 3 of the CPA is expressed in relation to its championing of the rights of the consumer by advancing the social and economic welfare of consumers in South Africa. Therefore, the rights of the consumer apparently take precedence over the rights of the supplier.
As such, suppliers will need to understand their obligations to provide terms and conditions in plain and understandable language, with reference to the criteria in section 22. They must also understand how their particular commercial practices align with section 3 of the CPA.
Arguably a supplier must comply with the provisions of section 3 of the CPA in order to meet the plain and understandable language provisions in section 22. Such compliance is important as the use of plain and understandable language represents the future of contractual relations in South Africa. The revolution of legal language is upon us. This particular revolution has its origins in sections 2, 3 and 22 of the CPA.
As always, language will remain contentious in South African law, especially when one refers to the principles of interpretation that are currently applicable. The principles applicable to the interpretation of statutes, especially in relation to the provisions of the CPA, may be weakened or lessened by the clear indication in the CPA of how consumer contracts must be drafted, interpreted and in whose favour the interpretation is to be made.
1 C Coker Lost In Translation (2006) at page 95
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.