The concept of ‘plain language’ has come to prominence with the arrival of the National Credit Act, the Consumer Protection Act and the new Companies Act. These Acts require that written communications be in plain language so that creditors, investors, employees and consumers are able to easily understand what is put in front of them, whether these are terms and conditions, contracts, reports or labels. The days of dominant parties bamboozling others with technical fine-print and legalese are over.
Our legislation does not define ‘plain language’ so much as provide a contextual benchmark in terms of which documents will meet the requirements of plain language. There is an assumption of “average literacy skills” of consumers, their “minimal experience” with the subject matter and then their ability to understand the document “without undue effort”. In other words, drafters should not assume a sophisticated audience and should focus on making it as easy as possible for lay readers to understand the wording of the document.
Yet, complying with the legal requirements of plain language is about more than just concise writing. It requires an understanding of one’s readership or audience, an understanding of any technical and legal components of the message, and an appreciation of structure and style. In addition, corporate realities necessitate that the message is expressed in such a way that it is user-friendly, protects the company’s brand, and promotes its image.
Many experienced commercial lawyers have difficulty breaking the habit of using highly technical language. Often, a better approach is to have the documents reviewed and edited by a plain language drafting specialist once they are completed, and then if necessary, finally reviewed again by the original drafter. That way, the document can be simplified for its readers in compliance with relevant legislation, but without its legal integrity being compromised.
Commercial attorney and plain language drafting specialist
James has a BA and LLB and was admitted as an attorney in 1997 after having completed articles at Cliffe Dekker. He spent a further two and a half years at Cliffe Dekker as an associate in its corporate commercial department followed by three years in-house at Deloitte & Touche, two years in-house at OVAG International in Switzerland and three years as MD of OVAG International SA in Johannesburg. He then qualified as an editor with a view to specialising in plain language drafting and has run his own commercial legal consultancy for the last few years.