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Legal Talk

Legal Talk

Author: Fawzia Khan
Date: 2013-05-23
Lawyers across the world are being encouraged to use plain language, as opposed to "legalese", in various legal documentations as well as in their communications with others.

Because of the "legalese" which most legal documents contain, these documents normally are only properly understood by another lawyer. Very often people need to have a legal document explained to them in "layman's" terms so that they fully understand its content.

Regarding this problem, it's been said that "The way lawyers write has been a source of complaint about lawyers for more than four centuries!" Phew, who knew? Seriously though, it certainly is time for us lawyers to re think the way we do business.

The time when lawyers across the globe used "legalese" in order to convey their intention is fast drawing to a close and South Africa is no exception. There is now a growing need for lawyers in South Africa to ensure that they use language, which is clearly understandable, and in plain language.

In fact both the Consumer Protection Act as well as the National Credit Act makes it compulsory for drafters of various types of commercial contracts to ensure compliance with plain language.

The Consumer Protection Act says that the terms in a contract must be clearly understood by the "ordinary consumer". Caryn Gootkin, an attorney and writer in Cape Town, says that lawyers have to be brave and start changing the way they draft their legal documents so that they can be accessible to non-lawyers.

She very wisely says that contracts are functional documents, which are written to be acted on. She cites an example where a clause in a contract could be changed to make it more understandable to the layperson and says that instead of having a clause which says "This agreement shall be binding on and enure for the benefit of the parties successors in title as fully and effectually as if they were a party to this agreement", it should rather be amended in plain language as follows "Our successors in title will be bound by all our rights and obligations in this agreement as if they had signed it."

Writing a legal document in a clear and concise manner will also ensure there is no ambiguity and will avoid confusion or misinterpretation. By using plain language, it assists the reader in understanding the content and allows for overall better communication.

Know your rights! Email fawzia@thelawdesk.co.za or call 031-5025670 for any legal assistance.