Johannesburg - The Consumer Protection Act's requirement
that information about products and services be presented to consumers in
"plain and understandable" language is challenging lawyers to find a
legally acceptable consensus on how such language can be defined and applied in
a way that complies with the law.
In terms of the new legislation, consumers are entitled to
receive information in plain and understandable language as part of their
"right to disclosure and information", said Neil Kirby, director at
Werksmans Attorneys and head of the firm's healthcare, pharmaceutical and life
sciences law practice.
"This sounds all well and good, but what is plain and
understandable language - and how does one know when this has been achieved,
within the context of contractual relations?"
Kirby noted that the failings of language in legal
relationships were well documented in South African jurisprudence.
"The difficulty that commercial lawyers generally
face," he said, "is ensuring that a client's best interests are
captured by the language used, especially within the context of contractual
Some of the provisions and definitions in the new act
relating to "plain and understandable language" were complex,
unclear, and open to differing interpretations.
But while the precise scope and ambit of some elements of
the legislation were still to be determined, in essence the act aimed to ensure
that consumers understood what they were buying, as well as the terms and
conditions relating to the transaction, Kirby said.
Buyers of goods and services would be deemed, in terms of
the act, to have a threshold of "average literacy skill and minimal
Kirby said that the threshold was therefore particularly low
for consumers, but high for suppliers to meet, given that consumers had to be
able to understand the communication without "undue effort".
He emphasised that the relevant provisions of the act were
designed to be as flexible as possible in order to take into account every
possible relationship between consumers and suppliers.
"A great deal of discretion is therefore left to those
tasked with enforcing the provisions (including the National Consumer
Commission), to determine what is or isn't plain and understandable language.
It's the level of intelligence and education of a particular consumer that may
very well inform what is plain and what is understandable in any particular
Kirby said: "The 'average literate and minimally
experienced' consumer is a new animal in South African law. The experience of
this consumer will dictate - subject to how some provisions of the act are to
be interpreted - whether particular suppliers are able to meet the obligations
now legally imposed upon them.
"This experience will also determine what plain and
understandable language is - which is to form the basis of the transaction -
and whether it is sufficient to protect both the interests of consumer and
He added that with the rights of consumers taking precedence
over the rights of suppliers, suppliers would have to understand what it was
that they were required to do in order to provide terms and conditions in plain
and understandable language, and also how their particular commercial practices
aligned with aspects of the legislation.
"Such compliance is important as it is the use of plain
and understandable language that arguably represents the future of contractual
relations in SA. The revolution of language is upon us... and it has its roots
in sections of the Consumer Protection Act."
This article is to inform and educate, not to advise.