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 were entitled to receive information in plain and understandable language as part of their “right to disclosure and information”, Neil Kirby, director at Werksmans Attorneys and head of the firm’s Healthcare, Pharmaceutical and Life Sciences Law Practice, said.
“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.
‘Context’
“The difficulty that commercial lawyers generally face,” he added, “is ensuring that a client’s best interests are captured by the language used, especially within the context of contractual relationships.”
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 experience”.
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”.
Protecting interests
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 circumstance.”
Kirby explained, “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 supplier.”
Understandable language
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. — I-Net Bridge