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Plain language and assessment of plain language

Article in International Journal of Private Law · June 2011

DOI: 10.1504/IJPL.2011.041063

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Int. J. Private Law, Vol. 4, No. 3, 2011 329

Plain language and assessment of plain language

Philip N. Stoop
Department of Mercantile Law,
College of Law,
University of South Africa,
P.O. Box 329, Muckleneuk,
Pretoria, 0003, South Africa
E-mail: stooppn@unisa.ac.za

Abstract: Plain language is a valuable tool that can be applied in order to

proactively promote procedural fairness in the law of contract. It also places
a consumer in a better position to protect his own interests. In most legal
systems, the use of plain language is compulsory, owing to the focus on
transparency and openness and the requirements of procedural fairness. In
South Africa, however, no objective guidelines have been published in order to
proactively assess whether a document is really written in plain language. In
this paper, the South African provisions regarding plain language are critically
discussed; the lack of objective guidelines and testing mechanisms is pointed
out and suggestions are made with reference to plain language provisions and
the testing mechanisms applied in other countries. Some of the methods of
testing are discussed and their suitability is pointed out from a South African
perspective.

Keywords: plain language testing; South Africa; contract; procedural fairness;

usability testing; plain language; private law.

Reference to this paper should be made as follows: Stoop, P.N. (2011) ‘Plain
language and assessment of plain language’, Int. J. Private Law, Vol. 4, No. 3,
pp.329–341.

Biographical notes: Philip Stoop completed his BCom, LLB and LLM
degrees, all cum laude, at the University of Pretoria. He completed his LLM
degree in 2008, the same year in which he started working as a Lecturer at the
University of South Africa, School of Law. In 2009, he was appointed as
Senior Lecturer. His areas of speciality are consumer protection and contract
law.

1 Introduction

“In the heels of the haggling lawyers, Bob,

Too many slippery ifs and buts and howevers,
Too much hereinbefore provided whereas,
Too many doors to go in and out of.”1
Plain language is a valuable tool that can be applied in order to proactively promote
procedural fairness in the law of contract. A consumer can therefore be placed in a better
position to protect his own interests. In most legal systems, the use of plain language is

Copyright © 2011 Inderscience Enterprises Ltd.

330 P.N. Stoop

compulsory, because of the focus on transparency and openness and the requirements of
procedural fairness. In a South African context, the National Credit Act and the
Consumer Protection Act recently made plain language in credit and consumer contracts
compulsory. Each of these pieces of legislation sets a basic standard or describes the
basic elements that a contract has to comply with in order to be in plain language. This is
also the position in some other countries. However, in South Africa no objective
guidelines have been published in order to proactively assess whether a document is
really written in plain language. The abovementioned pieces of legislation merely set a
plain language standard. Plain language aims at addressing technical vocabulary, archaic
words, overuse of passives, complex and long sentences, poor organisation and the
format of documents and is therefore a valuable tool for enhancing disclosure, the value
of disclosure, consumer understanding and procedural fairness. There are several
methods that can be used in order to assess plain language and to ensure compliance with
plain language requirements. These methods include formal testing, informal testing and
using assessment software.
In this paper, the South African provisions regarding plain language are critically
discussed, the lack of objective guidelines and testing mechanisms is pointed out and
suggestions are made with reference to plain language provisions and the testing
mechanisms applied in other countries. It is also indicated that plain language is
sometimes criticised from within the legal fraternity. Some of the methods of testing are
discussed and their benefits and suitability are pointed out from a South African
perspective. The assessment methods that could be successfully applied in a South
African context are also indicated.

2 Background

There are two general fairness concepts in the law of contract, namely substantial fairness
and procedural fairness. The idea behind procedural fairness is that the consumer should
be placed in a better position to protect himself against unfairness in substantive contract
terms because the consumer is then in a better position to look after his own interests.2
Before one can comply with the requirements of substantial fairness, therefore, one has to
comply with the requirements of procedural fairness. Procedural fairness is usually
measured with reference to transparency and therefore it requires proactive action.
Several aspects form part of transparency, such as time for reflection, prominence given
to certain terms, size of print, language and structure of the contract.3 Plain language, the
focus of this paper, is vital to transparency and therefore also to procedural fairness.
In most legal systems, the use of plain language is compulsory, because of the focus
on transparency and openness and the requirements of procedural fairness. In English
law, regulation 7(1) and (2) of the Unfair Terms in Consumer Contracts Regulations,
1999, requires a seller or supplier to ensure that any written term of a contract is
expressed in plain, intelligible language and stipulates that if there is any doubt about the
meaning of a written term, the interpretation which is most favourable to the consumer
will prevail. This rule is not proactive (as required in terms of procedural fairness) and
furthermore it does not provide objective guidelines on how plain language is assessed.
The South African National Credit Act,4 which applies to credit agreements between
credit providers and consumers, was the first South African Act that defined plain
language and made it compulsory. Recently, the Consumer Protection Act5 also made
 Plain language and assessment of plain language 331

plain language in consumer contracts compulsory. The Consumer Protection Act applies
to every transaction occurring within South Africa for the supply of goods or services or
the promotion of goods or services and the goods or services themselves, unless the
transaction is exempted from the application of the Act.6 With reference to their plain
language provisions, the National Credit Act and the Consumer Protection Act are not
proactive and do not provide objective guidelines on how plain language is assessed.
Both the National Credit Act and the Consumer Protection Act provide for guidelines
or standards to be published on how to assess whether a document is in plain language. In
the absence of methods for assessing whether a document is in plain language, credit
providers and suppliers must set up evaluation methods and courts have to interpret the
plain language provisions.

3 South African law and plain language

3.1 Right to documents in plain language and an official language in terms of

the National Credit Act
The National Credit Act requires that information should be supplied not only in plain
language but also in an official language.
Under the Constitution of the Republic of South Africa, 1996, South Africa has 11
official languages.7 The state has a constitutional duty to take positive and practical
measures to elevate and advance the use of languages that, historically, have had
diminished status.8 And all official languages must enjoy parity of esteem and be treated
equitably.9
One can assume that in South Africa and other multilingual countries, in the credit
sector a lack of information in plain language and in one’s official language is a possible
barrier to higher levels of awareness and financial literacy.
Under the National Credit Act, a consumer has a right to receive any documentation
required in terms of this Act in an official language that the consumer reads or
understands.10 But credit providers, credit bureaux and debt counsellors are only required
to supply documentation in a language that the consumer reads or understands, to the
extent that it is reasonable to do so, having regard to usage, practicality, expense, regional
circumstances and the balance of needs and preferences of the population that is usually
served by the specific credit role-player.11 To enforce its language sections, the National
Credit Act requires that every role-player required to register in terms of the Act make a
submission to the National Credit Regulator (the National Credit Regulator is a national
consumer credit institution which has jurisdiction in consumer credit matters throughout
South Africa), proposing to make documents available in at least two official languages,
and offering each consumer an opportunity to choose an official language in which to
receive documents from among at least two official languages as determined in
accordance with the proposal approved by the National Credit Regulator.12 Debt
counsellors, credit bureaux and certain credit providers are role players that have to
register, and may not conduct business without applying for registration to the National
Credit Regulator in terms of Sections 40–45.When the National Credit Regulator
considers the credit role-player’s language proposal, usage, practicality, expense, and
regional circumstances, it must consider the needs and preferences of the population
usually served by the credit provider.13 The National Credit Regulator has the power to
332 P.N. Stoop

approve the language proposal or to require the role-player to submit a new proposal if
the current one does not adequately provide for the maximum practicable enjoyment of
the right to documentation in a relevant official language.
In addition, a consumer has a right to information in plain and understandable
language, if no specific form is prescribed by the Act.14 The Act was the first South
African legislation that defined plain language.15 A document in a credit context will thus
be in plain language if it is reasonable to conclude that an ordinary consumer of the class
of persons, for whom the document is intended, with average literacy skills and minimal
credit experience, could be expected to understand the content, significance and
importance of the document.16 Regard must be had to the context, comprehensiveness
and consistency, the organisation, form and style, the vocabulary, usage and sentence
structure of the text and the use of illustrations, examples, headings, or other aids to
reading and understanding the document.17 The National Credit Regulator also has the
power to publish guidelines for methods of assessing whether a document satisfies the
plain language requirements,18 but no assessment guidelines have been published yet.
This broad and general definition of plain language encompasses sentence structure,
design, readability and wording. It refers to the ‘ordinary consumer’, and one could
therefore accept that ordinary readers will have to test whether credit documentation
meets the requirements set. Although the Act, in the broad definition of language, states
when a document will be regarded as being in plain language, no objective assessment
mechanism or guidelines have yet been prescribed.19 Courts will therefore have to decide
whether a document complies with the plain language requirements. This broad definition
of plain language is therefore subject to discretion and interpretation and can in fact not
be applied proactively.
So, in the absence of any objective mechanism, one will not be able to tell whether
credit role-players meet the requirements on plain language. It is therefore submitted that,
to proactively give effect to requirements on plain language, to improve levels of
disclosure and to increase procedural fairness, a sufficient assessment mechanism must
be put into place to test compliance with the National Credit Act and remedy
non-compliance.20
Because of the lack of objective assessment measures or guidelines, it is not clear
whether the provisions on official language and plain language have been implemented
successfully since the National Credit Act took effect in 2007. However, it remains a
daunting task to provide documentation in both official and plain language.21
Nevertheless, plain language is a valuable tool that can be used indirectly to combat
consumer over indebtedness – by increasing levels of disclosure and understanding. The
objective assessment of plain language or the lack of it should therefore be addressed.

3.2 The right to information in plain and understandable language in terms of

the Consumer Protection Act
In terms of the Consumer Protection Act, a specific right embedded under the umbrella
right of information and disclosure in the Act is the right to information in plain and
understandable language. This means that agreements and other communication should
be drafted in a way that enables consumers to make informed choices and to understand
the terms of the agreement they are entering into.
 Plain language and assessment of plain language 333

Any notice, document or visual representation that is required in terms of the

Consumer Protection Act or any other law should be in the form prescribed in the Act. If
no form is prescribed, it must be in plain language.22 Plain language is language that
enables an ordinary consumer (for whom a notice, document or representation is
intended), with average literacy skills and minimal experience as a consumer of the
relevant goods or services, to understand the content, significance and import of a
document without undue effort.23 This is also a very broad and general definition of plain
language.
Section 22 applies to all consumers. Whether it is intended for educated consumers or
consumers with no education, the document or representation must be in plain language.
However, in determining whether a document is in plain language, the class of persons
for whom the document is intended must be taken into account.
The next step in determining whether a document is in plain and understandable
language is to take the following factors into account: context, comprehensiveness, and
consistency;24 the form the representation takes or the style of the document;25 the way in
which the sentences are structured and the types of word used; and26 aids used to assist
the consumer in the reading and understanding of the document or representation.27
The Consumer Protection Act provides for the Consumer Commission (the Consumer
Commission is a national consumer protection institution which has jurisdiction in
consumer protection matters throughout South Africa) to publish guidelines on methods
of assessing plain language.28 No objective guidelines have been published yet that
should be met in terms of language, style and structure. So, in the absence of any such
objective mechanism or guidelines, one will not be able to tell whether suppliers have
met the requirements on plain language. It is therefore submitted that, to proactively give
effect to requirements on plain language to improve levels of disclosure and to increase
procedural fairness, an adequate objective assessment mechanism or guidelines must be
put into place to test compliance with the Consumer Protection Act and remedy non-
compliance. One of the issues is that the broad definition of plain language is too flexible
and is subject to discretion and interpretation.
Gordon and Burt (2010) analysed this definition of plain language in the Consumer
Protection Act and they state that it has been lauded internationally, since it speaks about
grammar and wording as well as the content, structure, design and style of the
document.29 They specifically looked at the following elements of the definition: ‘an
ordinary consumer’ – this indicates that not only lawyers and judges should be able to
understand a document sent to consumers; ‘average literacy skills’ – according to
statistics quoted by Gordon and Burt, 82% of South Africans are functionally literate, but
that does not equip them to understand business and legal documents; ‘minimal
experience’ – this indicates that legal writers should write for first-time consumers of
goods and services; ‘content, significance and import’ – this indicates that consumers
must not only understand what the document says but also how it applies to them and its
effect; ‘with undue effort’ – this indicates that if consumers need to consult a dictionary
or an adviser to understand the terms of a document then it would be considered that their
understanding cost them undue effort and such document would not be in plain language;
‘context’ – this indicates that it is necessary to take account of how and when consumers
read a document; ‘comprehensiveness’ – this indicates that the document must give full
information; ‘consistency’ – this indicates that terminology and style must be consistent
throughout a document; ‘organisation, form and style’ – this refers to how a document is
structured, for example no hidden small print may be used and important information
334 P.N. Stoop

should be given at the top of a document; ‘vocabulary, usage and sentence structure’ –
this refers to general readability principles such as short sentences, the active voice and
short words that (see more information on readability testing below); ‘illustrations,
examples, headings or other aids to reading and understanding’ – this refers to devices to
make a document more inviting and good techniques for communicating complex
information.
Unlike the National Credit Act, the Consumer Protection Act does not require that
information should be provided in one of the official languages. An official language
requirement would have placed an enormous burden on suppliers in South Africa. The
requirement of plain and understandable language may be all that is needed to provide
sufficient protection to the consumer. It is uncertain what the position will be in respect
of foreigners in South Africa with permanent residence status, where they only speak a
foreign language. How would the requirements of plain and understandable language be
complied with if they do not understand the language used in contracts or other
communication? However, as in the case with the National Credit Act, the objective
assessment of plain language or the lack of it should be addressed in order to give effect
to the plain language provisions. A point that can be raised here is that proactive testing
and evaluation of plain language in documents will lead to a contract being ‘stamped’
with the plain language stamp while it in fact remains to be a standard contract that the
consumer does not understand? That may be the case, but one must keep in mind that
plain language is just one factor that must be taken into account in order to decide
whether a contract is unfair if unfairness is alleged. One must also keep in mind, as stated
above, that a document should be drafted for the ordinary consumer for whom a notice,
document of representation is intended. Suppliers and business will therefore 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. Another issue is that it is difficult to proactively
(in advance) test plain language in a document if the consumer for whom the document is
intended is not yet known. On the one hand, this subjective part of the definition of plain
language could sometimes be a bar to proactive plain language testing. On the other hand,
as said, suppliers and businesses should have separate contracts and documents for
different target audiences on not just one standard contract for a certain situation.

4 Criticism of plain language

Although the use of plain language has become compulsory in many legal systems, plain
language campaigns and legislation sometimes meet with great resistance. Plain language
has mostly been criticised from within the legal profession. It is therefore important to
note that plain language has to do with clear and effective communication and that it is
not anti-intellectual or anti-literary.30 It addresses technical vocabulary, archaic words,
and overuse of passives, complex and long sentences, poor organisation and the format of
documents. Converting documents from formal language to precise plain language can be
to the benefit of those who drafted the documents because in the process of converting a
document into plain language ambiguities or uncertainties in the original document can
be identified – the new document may therefore be clearer and more accurate.31
An effective means of ensuring that plain language is used might be to provide that
consumers cannot be bound by documents that they do not understand. In South Africa, a
court may, in terms of Section 52(3) of the Consumer Protection Act, declare a
 Plain language and assessment of plain language 335

transaction in whole or in part to be unconscionable, unjust, unreasonable or unfair after

certain aspects have been considered. One of these aspects that must be considered in
terms of Section 52(2) before a document can be declared unconscionable, unjust,
unreasonable or unfair is the extent to which documents relating to a transaction or
agreement satisfy the plain language requirements. Legislators fear this idea because it
could open the doors to a flood of litigation. This problem could be solved by limiting
remedies to standardised documents.32 In terms of Section 81(2) of the National Credit
Act, a credit provider may not enter into a credit agreement with a consumer without
taking steps to assess the consumer’s understanding and appreciation of the risks and
costs of the proposed credit and of the consumer’s rights and obligations under a credit
agreement. Any agreement must be assessed to ensure that it is expressed in plain
language that could enhance understanding by consumers. If this assessment was not
conducted by a credit provider, a credit agreement could be declared reckless and
suspended or set aside in terms of Section 83 of the National Credit Act.

5 The assessment of plain language

As indicated above, the idea behind procedural fairness is that the consumer should be
placed in a better position to protect himself against unfairness in substantive contracts
because the consumer is then in a better position to look after his own interests.
Procedural fairness is usually measured with reference to transparency and thus requires
proactive action. Plain language that forms part of transparency therefore also requires
proactive action. The proactive assessment of plain language is therefore important and is
in line with the idea of procedural fairness.
As indicated, both the South African National Credit Act and the Consumer
Protection Act provide for the drafting of guidelines or standards on how to assess
whether a document is in plain language. In the absence of methods for assessing whether
a document is in plain language, credit providers and suppliers must set up evaluation
methods and courts have to interpret and apply the plain language provisions.
There are different objective assessment techniques and standards that can be applied
in order to assess whether contracts comply with plain language and readability
requirements. The three most common measures or standards that are used, and that I will
now discuss and evaluate, are:
1 informal assessment
2 formal assessment
3 using assessment software.

5.1 Informal assessment

There are several basic informal tests that can be used to assess whether a document
complies with the requirements of plain language. Some informal tests that are used in
practice include revising your own work, revising colleagues’ work, developing
checklists and in-house style guides to measure one’s own documents against and making
sure that people with no knowledge of law also understand the document, for example by
asking the typist whether he understands the contents of a documents that will be sent to
336 P.N. Stoop

consumers or asking clients for comments.33 Informal assessment would be difficult to

regulate, but nonetheless it remains a valuable in-house assessment tool for plain
language. A formal and objective style guide (general and visual guide) gives more
substance to general provisions and is a valuable test mechanism that legislators may use
in order to give concrete guidance to drafters.

5.2 Formal assessment

A very good example of a general and visual style guide that has been adopted by a
legislator can be found in the law of Pennsylvania. The legislator in the Pennsylvania
Plain Language Consumer Contract Act34 prescribed a broad and general standard and in
Section 2205(b)-(d) of that statute listed guidelines to determine whether the general
standard has been met. The language guidelines that should be applied in order to
determine whether a document meets the plain language requirement include the
following: the contract should use short words, paragraphs and sentences, active verbs
and should not use technical legal terms, other than commonly understood legal terms.
Latin and foreign words may not be used and if the document defines words, the word
must be defined by using commonly understood meanings. Furthermore, sentences may
not contain more than one condition 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. In determining whether a
contract meets these requirements, a court must consider the visual guidelines. The
guidelines require, among others, that the contract should have type size, line length,
column width, 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. In terms of section 2205(d),
a contract must contain a general description of the property that may be taken or affected
by reason of a security interest or contract if the consumer does not meet the terms of the
contract and contract waivers of a consumer’s rights in residential leases.
In Connecticut, very similar guidelines to those that apply in Pennsylvania are used,
but an alternative and more objective approach may be followed. The advantage of it is
that it can be applied easily and computers can be used to do the required calculations.35
The Connecticut General Statutes36 follow the alternative objective approach. They state
that a consumer contract is also written in plain language if it fully meets all the
requirements of the objective test. The objective test requires the following:
• The average number of words per sentence must be less than 22.
• No sentence in the contract may exceed 50 words.
• The average number of words per paragraph must be less than 75.
• No paragraph in the contract may exceed 150 words.
• The average number of syllables per word must be less than 1.55.
• The contract must use personal pronouns, the actual or shortened names of the
parties to the contract, or both, when referring to those parties.
• No typeface of less than eight points in size may be used.
 Plain language and assessment of plain language 337

• At least three-sixteenths of an inch of blank space must be allowed between each

paragraph and section.
• At least half an inch of blank space must be allowed at all borders of each page.
• If the contract is printed, each section must be captioned in boldface type at least ten
points in size. If the contract is typewritten, each section must be captioned and the
captions underlined.
• The average line length in the contract must be no more than 65 characters.
This is a very good example of objective guidelines that could be published by the South
African National Credit Regulator and the South African Consumer Commission in order
to proactively test whether a contract complies with the plain language standards set in
the National Credit Act and the Consumer Protection Act, except for the fact that it only
provides for plain language in contract documents. Guidelines for illustrations, examples,
headings or other aids to reading and understanding should also be drafted.
More formal testing usually involves getting expert help from communications
specialists. A test group is generally used. The formal tests that can be applied include
interviews, questionnaires and the cloze test.37 In interviews, groups are given sufficient
time to read through a document, after which they are interviewed. Participants then have
the opportunity to raise concerns and ask questions. The cloze-test determines whether
readers understand a specific section of a document. Certain words are then removed
from that section and readers have to fill in the gaps. This test is used to measure a
reader’s overall understanding of what he has read. A poor result indicates that the
consumer did not grasp enough of the context to enable him to make an informed guess
as to what the omitted words might be.38 Professional language practitioners also
sometimes offer services relating to plain language, such as plain language testing,
usability testing and plain language audits. Usability testing, which usually focuses on the
usability of websites, also deals with the complexity of a real document for real
consumers by analysing what consumers do with a document.39 In the process of
usability, testing problems are identified and solutions proposed. Usability testing
specifically examines content, organisation, layout, font, design and style.40 Plain
language and usability testing are therefore also tools that can be used to proactively
ensure compliance with plain language provision. Methods of testing for usability include
one-on-one interviews with consumers, asking questions on content, using fill-in-blank
exercises, focus group meetings, asking for draft comments and talking to readers.41
The definitions of plain language in both the National Credit Act and the Consumer
Protection Act begin with the reader and it therefore follows that credit providers and
suppliers should conduct user testing to ensure that their documents comply with the
plain language requirements.42

5.3 Using assessment software

Software programmes usually use well-known readability tests to test whether a
document is written in plain language. Readability formulas are a mathematical equation
that predicts the level or reading ability needed to understand a specific document and are
based on correlations with some measure of comprehension, such as scores on a reading
test. So, these formulas predict readability rather than measuring it. Another drawback is
338 P.N. Stoop

that they do not address the causes of problems people might have in understanding a
document in order to deal with these problems proactively.43
Readability formulas therefore have limited use, because they are not accurate in the
context of law nor are they proactive.44 Furthermore, they are not specifically adapted in
order to test compliance with the plain language provisions of different sets of legislation.
The Flesch reading ease test is probably the most common readability test that is used
in software packages such as Microsoft Office and it is sometimes incorporated into
legislation through the requirement of a minimum score.45 This test was proposed by
Rudolph Flesch in an article published in 1948.46
Basically, the test scores the readability of documents. A score of 100 would be
simple and a score of 0 would be very difficult.47 The test is applied by calculating the
average number of words in every sentence in the text and then multiplying it by 1.015.
The average number of syllables per word is then calculated and multiplied by 84.6. The
sum of these two answers is then subtracted from 206.835. The answer obtained gives the
Flesch reading ease score.48 A document with a very good score will therefore contain
shorter words and sentences.
The Flesch test has been criticised from a legal perspective. The basic point of
criticism is that legal language is hard to understand and that it cannot be improved by
shortening sentences and using shorter words.49 Longer words such as ‘helicopter’ and
‘homeowner’ would be understood by most speakers of English, while short words such
as ‘estop’ and ‘delict’ or ‘tort’ would cause problems.50 This means that a document pass
the Flesch test with ease without being written in plain language. Readability tests, such
as the Flesch tests, were not developed for technical documents because they ignore the
content, layout, organisation, word order, visual aids and the intended audience and they
emphasise countable features of the document rather than comprehensibility of the text.51
Flesch also indicated that:
“[s]ome, I am afraid, will expect a magic formula for good writing and will be
disappointed with my simple yardstick. Others, with a passion for accuracy,
will wallow in the little rules and computations but lose sight of the principles
of plain English. What I hope for are readers who won’t take the formula too
seriously and won’t expect from it more than a rough estimate.”52
Lastly, readability formulas assume that all consumers are alike, while South African
legislation requires that an ordinary consumer with average literacy skills and minimal
experience as a consumer should be able to understand the contents without undue effort.
So, in a South African context, general text-based readability tests cannot be applied in
order to test compliance with the plain language requirements.

6 Conclusions

The South African National Credit Act and Consumer Protection Act both made the use
of plain language compulsory in contracts and documents intended for consumers. Both
these Acts set a specific standard for plain language. These standards are contained in the
definitions of plain language and should be met before a document can be regarded as
being in plain language. These standards do not refer only to grammar and text but also to
visual aspects and illustrations. Both Acts also make provision for the publication of
guidelines on assessing whether a document is in plain language. However, no objective
 Plain language and assessment of plain language 339

assessment guidelines have been published yet. There are three main types of assessment
that can be conducted in order to proactively test whether a document has been written in
plain language. These methods or types or assessment are informal, formal and software
assessment. In general, informal assessment is conducted in-house and cannot be
regulated but can nevertheless be very valuable. Formal testing by way of usability
testing and comparing documents with an objective style guide is an assessment method
that could easily be applied in South Africa in order to test compliance with the plain
language standards set out in the National Credit Act and the Consumer Protection Act.
The law of Connecticut contains a very good example of an objective style guide that can
be used to test whether a document is in plain language. The advantage of their method
and style guide is that it is easy to apply and the required calculations can even be done
by computer. However, South African law should also make provision for separate
guidelines on assessing visual aspects such as illustrations.
Plain language has many benefits. It can increase transparency, openness, disclosure
and contribute to higher levels of procedural fairness. It can also help to save money and
time by reducing litigation, for example. The broad idea behind plain language is,
however, that people can only enjoy the benefits of the law if they understand it. But
without mechanisms or guidelines that can be applied in order to assess plain language,
plain language will remain no more than an ideal and consumers will never enjoy the full
benefit of the law, transparency and procedural fairness. Assessment of plain language is
therefore of the utmost importance and more focus should be placed on the development
of mechanisms and guidelines that can be applied in order to assess plain language. It
must also be noted that plain language on its own is not the sole solution for consumers
that do not understand contracts. In South Africa, education is of equal importance
because it addresses the current levels of literacy.

Acknowledgements

This paper is a revised and expanded version of a paper presented at the

International Private Law Conference, Barcelona, 2–5 November 2010 and published in
Kierkegaard, S. (2010) Private Law: Rights, Duties and Conflict, IAITL.

Notes
1 Sandburg, C. (1920) Extract from the poem ‘The lawyers know too much’ in Braithwaite,
W.S. (Ed.): Anthology of Magazine Verse for 1920, Small, Maynard & Co., Boston.
2 Willit, C. (2007) Fairness in Consumer Contracts, p.321, Ashgate, Hampshire, England.
3 Willit, C. (2007) Fairness in Consumer Contracts, pp. 321–375, Ashgate, Hampshire,
England.
4 34 of 2005.
5 68 of 2008.
6 Section 5(1).
7 Section 6.
8 Section 6(2).
9 Section 6(4).
10 Section 63(1).
340 P.N. Stoop

11 Section 63(1).
12 Section 63(2)(a)–(b).
13 Section 63(2) and (4).
14 Section 64.
15 See Viljoen, F. and Nienaber, A. (Eds.) (2001) Plain Legal Language for a New Democracy,
pp. 9–11, Protea Bookhouse, Pretoria, South Africa.
16 Section 64(2). Fine, D. (2001) ‘Plain language communication: approaches and challenges’, in
Viljoen, F. and Nienaber, A. (Eds.): Plain Legal Language for a New Democracy, Protea
Bookhouse, Pretoria, South Africa.
17 Section 64(2)(a)–(d).
18 Section 64(3).
19 See a press release of ‘Simplified, a South African plain language practitioner’, available at
http://www.bizcommunity.com/PressOffice/PressRelease.aspx?i=629&ai=18680, (accessed
on 25 August 2010).
20 See http://www.simplified.co.za/default.aspx?link=services_Plain_language_audit for an
informal plain language audit compiled by Simplified plain language practitioners (accessed
on 25 August 2010). For a detailed discussion of plain legal language, which includes a
discussion of plain language in the international context (Australia, UK, USA and SA), see
Viljoen, F. and Nienaber, A. (2001) Plain Legal Language for a New Democracy, pp.19–180,
Protea Bookhouse, Pretoria, South Africa.
21 Otto, J.M. (2006) The National Credit Act Explained, p.50, LexisNexis Butterworths, Durban,
South Africa.
22 S 22(1)(a)–(b).
23 S 22(2).
24 S 22(2)(a).
25 S 22(2)(b).
26 S 22(2)(c).
27 S 22(2)(d).
28 S 22(3).
29 Gordon, F. and Burt, C. (2010) ‘Plain language’, Without Prejudice, April, Vol. 10, No. 4,
pp.59–60.
30 Kimble, J. (1994–1995) ‘Answering the critics of plain language’, Scribes Journal of Legal
Writing, Vol. 5, pp.51–52.
31 Kimble, J. (2006) Lifting the Fog of Legalese, p.38, Carolina Academic Press, Durham,
North-Carolina.
32 Tiersma, P.M. (1999) Legal Language, pp.222–223, University of Chicago Press, Chicago,
USA.
33 Asprey, M.M. (2003) Plain Language for Lawyers, pp.295–297, Federation Press, Leichhardt,
Australia.
34 Pa. Stat. Ann. tit. 73 (1997); also see Tiersma, P.M. (1999) Legal Language, pp.224–225,
University of Chicago Press, Chicago, USA.
35 Tiersma, P.M. (1999) Legal Language, p.225, University of Chicago Press, Chicago, USA.
36 Conn. Gen. Stat. s 42- 152 (2009).
37 Asprey, M.M. (2003) Plain Language for Lawyers, pp.300–302, Federation Pres, Leichhardt,
Australia.
38 Asprey, M.M. (2003) Plain Language for Lawyers, p.302, Federation Press, Leichhardt,
Australia.
39 In general see Dumas, J.S. and Redish, J.C. (1999) A Practical Guide to Usabality Testing,
Intellect, Exeter, England.
 Plain language and assessment of plain language 341

40 Redish, J (2000) ‘Readability formulas have even more limitations than Klare discusses’,
ACM Journal of Computer Documentation, Vol. 24, p.132.
41 See Smith D. (1996) ‘How to assess & evaluate – a plain language in progress presentation’,
Rapport, No. 19, available at http://www.plainlanguagenetwork.org/Rapport/rap19.html
(accessed on 23 August 2010).
42 See a press release by Simplified, available at
http://www.bizcommunity.com/PressOffice/PressRelease.aspx?i=629&ai=21094 (accessed on
25 August 2010).
43 Redish, J. (2000) ‘Readability formulas have even more limitations than Klare discusses’,
ACM Journal of Computer Documentation, Vol. 24, No. 132 and Klare, G.R. (1974)
‘Assessing readability’, Reading Research Quarterly, Vol. 10, p.62.
44 See Asprey, M.M. (2003) Plain Language for Lawyers, p.299, Federation Press, Leichhardt,
Australia.
45 Tiersma, P.M. (1999) Legal Language, p.225, University of Chicago Press, Chicago, USA and
see Klare, G.R. (1974) ‘Assessing readability’, Reading Research Quarterly, Vol. 10,
pp.62–102, for an analysis of other readability formulas.
46 Flesch, R (1948) ‘A new readability yardstick’, Journal of Applied Psychology, Vol. 32,
p.221.
47 Tiersma, P.M. (1999) Legal Language, p.226, University of Chicago Press, Chicago, USA.
48 See http://www.readabilityformulas.com/flesch-reading-ease-readability-formula.php where
the Flesch Reading Ease readability formula is explained (accessed on 25 August 2010).
49 Tiersma, P.M. (1999) Legal Language, p.227, University of Chicago Press, Chicago, USA.
50 See Tiersma, P.M. (1999) Legal Language, p.226, University of Chicago Press, Chicago,
USA, for more examples.
51 Also see Redish, J. (2000) ‘Readability formulas have even more limitations than Klare
discusses’, ACM Journal of Computer Documentation, Vol. 24, pp.132–137.
52 Flesh, R. (1946) The Art of Plain Talk, Harper and Brothers, New York.

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