Unpacking the Right to Plain and Understandable Language in the Consumer Protection Act 68 of 2008

The Consumer Protection Act 68 of 2008 came into effect on 1 April 2011. The purpose of this Act is, among other things, to promote fairness, openness and respectable business practice between the suppliers of goods or services and the consumers of such good and services. In consumer protection legislation fairness is usually approached from two directions, namely substantive and procedural fairness. Measures aimed at procedural fairness address conduct during the bargaining process and generally aim at ensuring transparency. Transparency in relation to the terms of a contract relates to whether the terms of the contract terms accessible, in clear language, well-structured, and cross-referenced, with prominence being given to terms that are detrimental to the consumer or because they grant important rights. One measure in the Act aimed at addressing procedural fairness is the right to plain and understandable language. The consumer’s right to being given information in plain and understandable language, as it is expressed in section 22, is embedded under the umbrella right of information and disclosure in the Act. Section 22 requires that notices, documents or visual representations that are required in terms of the Act or other law are to be provided in plain and understandable language as well as in the prescribed form, where such a prescription exists. In the analysis of the concept “plain and understandable language” the following aspects are considered in this article: the development of plain language measures in Australia and the United Kingdom; the structure and purpose of section 22; the documents that must be in plain language; the definition of plain language; the use of official languages in consumer contracts; and plain language guidelines (based on the law of the states of Pennsylvania and Connecticut in the United States of America).


Introduction
The South African National Consumer Protection Act 2 (the Act) came into effect on 1 April 2011. The purpose of this Act is inter alia to promote fairness, openness and respectable business practice between the suppliers of goods or services and the consumers of such goods and services. The Act furnishes consumers with augmented specific consumer rights, grounds for product liability, and certain automatic warranties pertaining to the quality of goods.
One of the most important aspects addressed in the Act is "language". Section 22 of the Act stipulates that all information should be in plain and understandable language. The phrase "plain and understandable" for purposes of consumer Traditionally the law of contract merely provides a framework within which contracts are enforced, 4 without concern for their context. 5 Legislation is then often adopted to address this imbalance, by regulating the fairness of contract terms, for instance. 6 The starting point for consumer protection legislation is the imbalance, from a legal and economic perspective, between suppliers and consumers in the making of a contract, in the terms of a contract, and in the enforcement of a contract. This imbalance may arise because the traditional (or classical) law of contract applies regardless of the identity of the parties, their relationship to one another, the subject matter of the contract, and the social context of the contract. 7 In consumer protection legislation fairness is usually approached from two angles, namely substantive and procedural fairness. As the aim of these two "approaches" and therefore the moment at which reasonableness is relevant differ, it makes sense to distinguish between them, even though they are interdependent.
Measures aimed at procedural fairness address conduct during the bargaining process and generally aim at ensuring transparency. 8 Transparency has two elements: (a) transparency in relation to the terms of a contract, and (b) 4 However, when it is alleged that a contract in restraint of trade is unreasonable, reasonableness Appellate Division reviewed the authorities on the exceptio doli generalis and concluded that it is not part of South African law (at 607B). The exceptio doli generalis could therefore no longer be used to give relief against the enforcement of an unfair contract. 5 The taking into consideration of context at the formation of a contract or pre-contractually is therefore not foreign to the South African law of contract. See for example the rules on misrepresentation and fraud, duress, undue influence, mistake and illegality, which aim at curbing unfairness at the formation of a contract. In these instances context (at the formation of a contract) plays a role. The question is, however, whether the common-law rules and principles cover the ground sufficiently or whether there are gaps that need to be filled to curb unfairness.
See also Christie and McFarlane Law of Contract 14. 6 For a discussion of the goal of consumer protection, see transparency in the sense of not being positively misled, pre-contractually or during the performance of a contract, as to aspects of the goods, service, price, and terms.
Transparency in relation to the terms of a contract relates to whether or not the contract terms are accessible, in clear language, well-structured, and crossreferenced, with prominence being given to terms that are detrimental to the consumer or because they grant important rights. 9 In a nutshell, one could say that a contract is procedurally fair where it has been concluded voluntarily.
Substantive fairness relates to procedural fairness through the requirement of transparency. That is because a high level of transparency means that the consumer is placed in a position at least to have a chance of being able to exercise a reasonable degree of informed consent. So what is a high level of transparency? A good level of transparency has to do with, among other things, aspects such as information disclosure, awareness of the terms, the size of the print, the clarity of the language, and the interpretation and format, as these procedural factors relate to circumstances surrounding the manner in which agreement is reached. 10 Transparency can be a negative control which allows at most the elimination of unclear and incomprehensible contract terms, or it may provide for positive duties, such as the duty to explain and summarise the implications of certain contractual terms. 11 A high level of transparency means that the consumer is placed in a position at least to have a chance of being able to exercise a reasonable degree of informed consent. Transparency therefore enhances choice and fairness substantively. 12 Although procedural fairness and measures aimed at procedural fairness may have limitations, the requirement of plain and understandable language, as set out in form consumer contracts as well as the unfair contract terms law. 17 The purpose of the ACL is to protect and safeguard consumers and to ensure fair trading in Australia. 18 The ACL is contained in schedule 2 of the Competition and Consumer Act, 2010, which is the new name of the Trade Practices Act, 1974. 19 Sections 23 and 24 of the Competition and Consumer Act, 2010 are of cardinal importance to this article, since they stipulate what unfair terms of consumer contracts are and the meaning of unfair is clearly explained. It is important to note that the ACL does not specifically provide for "plain language" as such, but provides that a term is transparent if the term is "expressed in reasonably plain language". 20 Section 23 stipulates as follow: Unfair terms of consumer contracts (1) A term of a consumer contract is void if: (a) the term is unfair; and (b) the contract is a standard form contract.
(2) The contract continues to bind the parties if it is capable of operating without the unfair term.
(3) A consumer contract is a contract for: (a) a supply of goods or services; or (b) a sale or grant of an interest in land; to an individual whose acquisition of the goods, services or interest is wholly or predominantly for personal, domestic or household use or consumption.
Section 24 stipulates the following: Meaning of unfair (1) A term of a consumer contract is unfair if: (a) it would cause a significant imbalance in the parties; rights and obligations arising under the contract; and (b) it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and (c) it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.
(2) In determining whether a term of a consumer contract is unfair under subsection (1), a court may take into account such matters as it thinks relevant, but must take into account the following: (a) the extent to which the term is transparent; (b) the contract as a whole. (3) A term is transparent if the term is: (a) expressed in reasonably plain language; and (b) legible; and (c) presented clearly; and (d) readily available to any party affected by the term. (4) For the purposes of subsection (1)(b), a term of a consumer contract is presumed not to be reasonably necessary in order to protect legitimate interests of the party who would be advantaged by the term, unless that party proves otherwise.
The question now is what exactly is meant by "reasonably plain language". As already stated, no specific provision is made for the term "reasonably plain language" under the ACL, and it is therefore assumed that reasonably plain language in consumer contracts refers to contracts that are "easily legible", "clearly expressed" and, if printed or typed, be in a "minimum 10 point Times New Roman font, or a minimum of an equivalent size". 21 Moreover, communication is the main purpose of language and it is submitted that the purpose of plain language is to communicate in a clear and effective way. In other words, the needs of the audience (the consumers) take precedence over any other consideration. 22 The following definition of plain language was therefore recommended: 23 A communication is in plain language if it meets the needs of its audience -by using language, structure, and design so clearly and effectively that the audience has the best possible chance of readily finding what they need, understanding it, and using it.
A second question that can be asked is how a court would determine if a term is "unfair"? When a court has to determine whether a term of a standard form consumer contract is unfair, any matter that the court believes is relevant and 21 Paterson 2003 MULR 934. 22 Cheek 2010 Clarity 5. 23 Cheek 2010 Clarity 5. pertinent may be taken into consideration. 24 The court is, however, obliged to take the following two factors into consideration: 25 (a) the extent to which the term is transparent; and (b) the contract as a whole.
A lack of transparency regarding a term in a standard form consumer contract has serious consequences and may cause imbalances for contract parties' rights and obligations. It is therefore important for a court to take the transparency requirement into consideration. Only the court has jurisdiction to determine whether a term is transparent or obscure. 26 Terms which may not be considered transparent include terms that are concealed in fine print or schedules, or that are expressed and phrased in legalese or in complex, difficult or technical language. 27 Although the court is required to take into account the transparency requirement, this does not mean that a contract that does not meet the transparency requirement is unfair. It should be remembered that transparency "will not necessarily overcome underlying unfairness in a contract term". 28 The wording of the United Kingdom counterpart regarding unfair contract provisions differs somewhat from the Australian unfair contract terms provisions. 29 The United Kingdom's laws refer to 'plain and intelligible language' while the Australian laws refer to 'transparency'. The finding of Smith J in the case of Office of Fair Trading v Abbey National plc 30 shed some light in this regard: Regulation 6(2) … requires not only that the actual wording of individual clauses or conditions be comprehensible to consumers, but that the typical consumer can understand how the term affects the rights and obligations that he and the seller or supplier have under the contract. light of the contract as a whole. 31 When there is a particular term in the contract that is to the benefit of the consumer, such an advantageous or favourable term may not counterbalance an unfair term if the consumer is unaware of it. 32 It is thus clear that a court will be able to determine the "unfairness" of a term only if the transparency factor and the 'contract as a whole' factor are taken into account.

United Kingdom
'Plain English' is not a new concept in the United Kingdom and had already left its mark during the fourteenth century. 33 The first English dictionary saw the light in 1604 with an explanation that "hard vsuall English words, borrowed from the Hebrew, Greeke, Latine, or Frensch. &c. With the interpretation thereof by plaine English words, gathered for the benefit & helpe of Ladies, Gentlewomen, or any other vnskilfull persons". 34 From the seventeenth century, the Protestants, especially the Quakers, were big proponents of the use of "simple style", which was commonly known as "plain language". 35 During the 1970s the "plain English movement" was started by several consumer groups and the mass media were used in order to "ridicule examples of obscurity in legal documents and government forms". In 1979 the "Plain English Campaign" was established by Muller and Cutts, who strove to fight "gobbledygook-legalese, small print and bureaucratic language". This "Plain English Campaign" has grown over the years and is still a fast-growing and successful phenomenon today. A need for the protection of consumers arose over the years, and the United Kingdom was left with no choice other than to develop and implement the necessary legislation.
As the law currently stands, there are two major pieces of legislation which deal with unfair contract terms, and this legislation also contains certain provisions relating to plain language in consumer contracts. They are the Unfair Contract Terms Act, 1977 (UCTA) and the Unfair Terms in Consumer Contracts Regulations, 1999 (UTCCR). 37 The following table provides a brief overview and comparison between the UCTA and the UTCCR: 38

UCTA UTCCR
Complex and difficult Act, written in a 'compressed' and dense style. Regulation 7 of the UTCCR stipulates that it is the responsibility of sellers or suppliers to ensure that any written term of a consumer contract is expressed in "plain, intelligible language". This concept applies in three ways: 41 (a) If the meaning of a contract term is in question or doubtful, the courts will choose the interpretation that is most favourable to the consumer. 42 This is where the well-known common-law rule is reflected: "an ambiguous written term should be construed against the party putting it forward". 43 (b) Part 8 of the Enterprise Act, 2002 stipulates that enforcement bodies are authorised to remove terms which are not in "plain, intelligible language".

(c)
A term pertaining to the "adequacy of the price" or "main subject matter" will be reviewable for fairness if such a term(s) is not drafted in "plain, intelligible language". stipulates that a term(s) in any consumer contract must be "written in plain and intelligible language which can be understood by the consumer to whom the contract is directed". Article 47 (2)  It can therefore be concluded that "plain, intelligible language" means that a term(s) in a consumer contract should also be legible, presented clearly and readily available to the consumer.

The statutory provision: section 22 of the Act
Before we turn to the analysis of section 22 of the South African Consumer Protection Act, it is unfortunately necessary to quote extensively from the Act to enable the reader to appreciate the magnitude of the plain language provision.
Section 22 stipulates the following: (3) The Commission may publish guidelines for methods of assessing whether a notice, document or visual representation satisfies the requirements of subsection (1)(b).
(4) Guidelines published in terms of subsection (3) may be published for public comment.
In the following paragraphs we will address the following aspects: the structure and purpose of section 22, which documents must be in plain language, what plain language is, if documents should be drafted in plain language in order to comply with the plain language requirements, and proposed guidelines to determine whether or not a document is written in plain language.

Structure and purpose of section 22
Section 22 requires notices, documents or visual representations that are required in terms of the Act or other law to be provided in plain and understandable language as well as in the prescribed form, if any. Section 50 also makes plain language compulsory in all consumer agreements. 47 The right to receive information in plain and understandable language 48 is embedded under the umbrella right of information and disclosure in the Act. 49 In interpreting section 22, effect must be given to certain purposes set out in section 3, several of which are served by the protection of the right to receive information in plain and 47 The National Credit Act 34 of 2005 was the first South African piece of legislation that required agreements to be drafted in plain language (s 64). The Companies Act 71 of 2008 in subsections 6(4) and (5)  understandable language. 50 These include the purpose of "reducing and ameliorating any disadvantages experienced in accessing any supply of goods or services by consumers whose ability to read and comprehend any advertisement, agreement, mark, instruction, label, warning, notice or other visual representation is limited by reason of low literacy, vision impairment or limited fluency in the language in which the representation is produced, published or presented". 51 Section 22 also serves the purpose of "improving consumer awareness and information and encouraging responsible and informed choice and behaviour". 52 Enabling consumers to make informed choices means that consumers are able to compare products and the prices they are willing to pay, which makes markets more efficient. 53 Disclosure can, for example, drive down prices by allowing consumers to shop around and compare prices. Accessible information in required notices and documents and in consumer agreements is also important for the purpose of "promoting consumer confidence, empowerment and the development of a culture of consumer responsibility". 54 The prescription of standardised forms for notices and documents that are required in terms of legislation enhances consumer protection because basic information is to be presented in a uniform format, making it less likely that consumers will be misled. 55 The plain language requirement therefore seeks to advance procedural fairness. 56 In the context of consumer contracting, procedural fairness refers to fairness in the actual process of contracting itself, as opposed to fairness in the substance of the agreement. 57 The purpose of measures aimed at procedural fairness is to enable consumers to look after their own interests when dealing with suppliers. 58 One 50 important aspect of procedural fairness is transparency. 59 Several issues form part of transparency, such as the prominence given to certain terms, the size of the print, the language and structure of the contract, and giving the consumer an adequate opportunity for reflection. 60 Plain language is vital to transparency and therefore also to procedural fairness. Thus, many countries have adopted plain language legislation which requires consumer agreements to be in plain language. 61 6 Which documents must be in plain language?
Section 22 (1)  where an agreement between a supplier and a consumer has been put in writing voluntarily, it must satisfy the plain language requirement and the supplier must Gordon and Burt analysed the definition of plain language in section 22 and they state that the definition has been lauded internationally, since it involves the grammar and wording as well as the structure, content, design and style of the document. 73 However, it is a very broad definition as it does not give much direction to drafters as to what is specifically required of them. 74 The use of the phrase "an ordinary consumer" indicates that not only lawyers and judges should be able to understand a document sent to consumers. 75 "For whom a notice, document or visual representation is intended" indicates that suppliers will have to draft more than one set of standard contracts for a specific situation in order to cater for the consumers for whom it is intended, so they must know their "target audience" in advance. It is also advisable to test the proposed wording of the document on a part of the target audience.
The phrase "average literacy skills" implies that documents must cater for average "Content, significance and import" indicates that consumers must not only understand what the document says, but also how it applies to them, its significance and effect. 80 Put differently, the consumer must at least clearly understand the legal consequences of a document or terms, and its express and implied meaning.
"Without undue effort" indicates that if consumers need to consult an advisor or dictionary to understand the terms of a document it would be concluded that their understanding cost them undue effort and that such a document was not in plain language. 81 "Context" indicates that it is necessary to take account of how and when consumers read a document or how the document is used. 82 What the consumer could reasonably be expected to know from previous transactions could therefore be taken into account. Gordon and Burt use the example of a DVD: with a DVD rental contract it would be reasonable to expect consumers to know what a DVD is, as it is unlikely that they would be in this context if they did not. 83 "Comprehensiveness" indicates that the document must give full information. 84 "Comprehensiveness" further indicates that it is not only necessary to take account of how a document is written, but also of what is written. The contents of a document should therefore be considered and should enable a consumer to make an informed choice.
"Consistency" indicates that the terminology and style must be consistent throughout a document. 85  In terms of s 63 of the National Credit Act 34 of 2005 every consumer has a right to receive any document that is required in terms of the National Credit Act in an official language that he reads or understands to the extent that this is reasonable, bearing in mind usage, practicality, expense, regional circumstances and the balance of the needs and preferences of the population ordinarily served by the person required to deliver that document. The Consumer Protection Act 68 of 2008 does not contain a similar provision. One can therefore conclude that the Consumer Protection Act does not furnish a consumer with a right to receive any document that is required in terms of the Consumer Protection Act in a particular official language. Furthermore, section 40(2) provides that it is unconscionable for a supplier to knowingly take advantage of the fact that a consumer is substantially unable to protect his or her own interests because of an inability to understand the language of an agreement. If the supplier realises that a consumer is unable to understand the language of the agreement, the agreement may be subject to challenge on the basis of section 40. 92 Section 6(2) of the Constitution of the Republic of South Africa, 1996. 93 Section 6(4) of the Constitution of the Republic of South Africa, 1996.See also  See the discussion in Stoop 2011 Int J Private Law 334.
The draft of the Consumer Protection Bill contained a section on the right to information in an official language. 96 However, it was omitted from the final Bill after certain industry stakeholders made submissions that the requirement for the provision of information in all official languages would have been too onerous. 97 On the one hand, in the light of this omission, one can conclude that a notice, document or visual representation does not need to be written in an official language in order for it to be in plain language. On the other hand, plain language is language that enables an ordinary consumer of the class of persons for whom a notice, document or visual representation is intended to understand it. When a drafter considers the class of persons for whom a notice, document or visual representation is intended, language should certainly be taken into account. It will, therefore, be to a supplier's advantage to translate documents, notice or visual representations into the official languages spoken by the class of persons for whom they are intended.

Guidelines that may be published or taken into account
The three most common plain-language standards or assessment measures that may be applied to assess if agreements comply with plain language requirements are: (a) informal assessment; guide gives more substance to general provisions and is a valuable test mechanism or guideline that a legislator or a regulator may use to give concrete guidance to drafters.
The Consumer Protection Act provides that the National Consumer Commission (NCC) may publish guidelines on methods of assessing plain language. 100 No such objective guidelines have been published yet. In the absence of guidelines, it will be difficult to tell whether suppliers meet the requirements of plain language or not. In order to proactively give effect to the requirement of the use of plain language, to improve levels of disclosure and to increase procedural fairness, objective assessment mechanisms or guidelines must be put in place.
It is a concern that the definition of plain language is too flexible and is subject to discretion and interpretation. 101 Guidelines on methods of assessing plain language might solve these concerns and would help in testing compliance with the plain language provisions and in preventing non-compliance. (c) Latin and foreign words may not be used; (d) if the document defines words, they must be defined by using commonly understood meanings; (e) sentences may not contain more than one condition; (f) and cross-references may not be used, except cross-references that briefly and clearly describe the substance of the item to which reference is made.
Section 2205(c) contains visual guidelines which a court must consider in determining whether or not a contract meets these requirements. These guidelines require, for instance, that the contracts should have type size, line length, columnwidth margins and spacing between lines and paragraphs that make the contract easy to read, that the contract should have caption sections typed in bold, and that the contract should use ink that contrasts sharply with the paper. If a creditor, lessor or seller does not comply with the plain language requirements of the Pennsylvania Plain Language Consumer Contract Act, 105 he or she will be liable to that consumer for the following: compensation in an amount equal to the value of the actual loss amount of the contract is less than US$100); court costs; reasonable attorney fees; any equitable and other relief ordered by the court. 106 Very similar guidelines to those that apply in Pennsylvania are used in Connecticut, but a more objective approach may also be followed. 107 An objective test is specific in its specification because it stipulates specific numbers and sizes to which words, sentences and syllables should adhere. 108 The Connecticut statute provides that a consumer contract is written in plain language if it fully meets the requirements of the alternative objective test. The objective test requires the following: (a) the average number of words per sentence must be fewer than 22; (b) no sentence in the contract may exceed 50 words; (c) the average number of words per paragraph must be fewer than 75; (d) no paragraph in the contract may exceed 150 words; (e) the average number of syllables per word must be fewer than 1.55; (f) the contract must use personal pronouns, the actual or shortened names of the parties to the contract, or both, when referring to those parties; (g) no typeface of less than eight points in size may be used; (h) at least three sixteenths of an inch of blank space must be allowed between each paragraph and section; (i) at least half an inch of blank space must be allowed at all borders of each page; (j) if the contract is printed, each section must be captioned in boldface type at least 10 points in size. If the contract is typewritten, each section must be captioned and the captions underlined; and (h) the average line length in the contract must be no more than 65 characters.
The advantage of this alternative approach is that it can be applied easily and computers can be used to do the required calculations. 106 Section 2207 of the Pennsylvania Plain Language Consumer Contract Act (Pa Stat Ann Tit. 73 (1997)

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Consequences of non-compliance

Validity
The effect of a term or agreement not being in plain and understandable language is not clear. Section 51(1)(a)(i) states that a supplier may not enter into a transaction or agreement subject to a term or condition if its general purposes is to defeat the policy of the Act. Section 3(1)(b)(iv) of the Consumer Protection Act states that it is the purpose of the Act to promote and advance the social and economic welfare of consumers by: reducing and ameliorating any disadvantages experienced in accession any supply of goods or services by consumers whose ability to read and comprehend any advertisement, agreement, mark, instruction, label, warning, notice or other visual representation is limited by reason of low literacy, vision impairment or limited fluency in the language in which the representation is produced, published or presented. supplier's obligation or duty in terms of the Act or override the effect of any provision of the Act. Section 50(2)(b)(i) requires agreements to be written in plain and understandable language. Section 51(3) provides that a transaction or agreement, provision, term or condition of a transaction or agreement is void to the extent that it contravenes section 51. Therefore, one may argue that if an agreement is not written in plain and understandable language as required in terms of section 50(2)(b)(i), the agreement, provision, term or condition of the agreement will be void in terms of section 51 (3). 117 If an agreement, term or condition of an agreement is void, the court may sever any part of the agreement or provision or alter it to the extent required to render it lawful or declare the entire agreement or provision void as from the date it purportedly took effect. 118 The court may also make any further order that is just and reasonable in the circumstances with respect to the agreement. 119 On the other hand, one may argue that whether or not an agreement is in plain and understandable language is merely a factor in deciding whether a term or agreement is unfair under section 48. Whether a term is in plain language or not is merely listed as a factor in section 52. 120 Therefore noncompliance with the plain language requirements will not necessarily render a term or agreement void. 121

Prohibited conduct and compliance notices
In terms of section 71 (1)  of section 100. 123 The compliance notice must, among other things, set out the details and nature and extent of the non-compliance with the plain language requirements, any steps that are required to be taken, and the period within which such steps must be taken. The compliance notice must also set out any penalty that may be imposed in terms of the Act it those steps are not taken. 124 Section 100 further provides that if a person to whom a compliance notice has been issued fails to comply with the notice, the National Consumer Commission may apply to the Tribunal for the imposition of an administrative fine 125 or refer the matter to the National Prosecuting Authority in terms of section 110(2). 126 Section 110(2) provides that it is an offence not to act in accordance with a compliance notice. 127 However, no person may be prosecuted in respect of non-compliance with a compliance notice if the National Consumer Commission has applied to the Tribunal for the imposition of an administrative fine.
Plain language is not directly addressed in section 40(2). Section 40 (2), however, provides that it is unconscionable for a supplier to knowingly take advantage of the fact that a consumer was substantially unable to protect his or her own interests because of an inability to understand the language of an agreement. If a consumer alleges that a supplier acted unconscionably, 128 made false, misleading or deceptive representations 129 or that a contract term or terms are unfair, unreasonable or unjust, 130 the court must consider several factors to ensure fair and just conduct, terms and conditions. 131 One of these factors in deciding if a term or agreement is unfair under section 48 is the extent to which any documents relating to the 123 Section 73(1)(c)(iv) of the Consumer Protection Act 68 of 2008. transaction or agreement satisfy the plain language requirement. 132 Non-compliance with the plain language requirements may therefore contribute towards a finding of unfairness in terms of section 52 of the Act.

Conclusion
The Consumer Protection Act has made the use of plain and understandable language compulsory in contracts and documents intended for consumers. It contains a detailed definition of plain and understandable language, which contains elements pertaining to grammar, text, visual aspects, and illustrations. All the elements of this definition have been analysed in this article. The Act also makes provision for the publication of guidelines on assessing whether a document is in plain and understandable language or not. No guidelines have been published yet.
Guidelines based on foreign legislation are therefore proposed in this article.
The importance and role of plain language in consumer contracts have also been accentuated. Great effort is being made in countries such as South Africa, Australia, the United Kingdom, Malta, and certain states in the United States of America to draw up consumer contracts in the simplest language possible, without "fancy tricks", so that an average consumer can understand such a contract. This is because a consumer has a right to empathise and understand the contract he or she signs. One can say that a consumer is entitled to "simple language" and "transparent" contracts where the rights and duties of all parties are clearly specified. The most important goal of plain language rights is to empower consumers to understand the contracts they sign and to make informed decisions. It would therefore serve no purpose to allow clearly deceptive and misleading clauses in consumer contracts, even if they are embedded in simple, straightforward words and phrases. It must be emphasised that plain language has substantial benefits and advantages for consumers as well as for businesses. Of course the exact value of these benefits and advantages cannot be determined, but there are enough compelling reasons to believe that these benefits and advantages outweigh the costs. 134 Most importantly, using plain language increases transparency, openness and the extent of disclosure, and contributes to higher levels of procedural fairness. It may also save money and time by reducing the amount of unnecessary litigation.
To conclude, the use of plain and understandable language in consumer contracts results in transparency and clear and effective communication -nothing more or less. 135 It is therefore essential that the following should be kept in mind when it comes to consumer contracts and consumer rights: 136 So long as consumers' rights are not transparent, they will not be accessible by consumers. In turn, having rights that are not accessible can be tantamount to not having any rights at all. Therefore, for consumer empowerment, not only should consumers have the necessary rights, but they should also be aware of these rights and be able to access these rights when they need to.