The purpose of this dissertation and the research contained therein was to discuss and
investigate the influence of the CPA on concept of plain language in standard-form
consumer contracts. In order to do so, it was important to discuss the historic background of
the law of contract as well as the position where the CPA was not applicable. This refers to a
position where common law principles determined the law of contract (including standardform
contracts). One of the fundamental principles of common law is freedom of contract.
Freedom of contract is a notion that parties are free to decide whether or not to contract, with
whom to contract, the nature of the contract and the terms of the contract.
Despite the fact that freedom of contract is deeply engrained in our legal system, does not
erase the fact that when it comes to consumer contracts (in particular standard-form contract
or contrat d adhésion) it is to the detriment of consumers. Under the principle of freedom of
contract the assumption is that parties have equal bargaining powers which is, in fact, not
In light of the above, the South African legislature promulgate the Consumer Protection Act,
Act 68 of 2008 which aims at improving the quality of information conferred to consumers by
the sellers, to ensure consumers make informed decisions which are in line with their needs
prior to contracting. Though the CPA changes the common law, it still makes provision to
preserve common law. Section 2(10) of the CPA leaves no doubt that the common law is not
replaced in its entirety by the Act for those matters that apply to it.
The introduction of the CPA brought about changes to the South African consumer
protection law. One of the changes is Section 22 which deals with plain language. A
fundamental consumer right under the CPA, the consumer s right to disclosure and
information (Part D) of the Act includes section 22 within its ambit and provides that
consumers have the right to information in plain and understandable language. It is
perceptible from this that the legislature envisions the plainness of language in contracts
(including standard-form contracts) and other legal documents as means to redress
imbalances between suppliers and consumers.
While it is undeniable that the will now be additional burdens on being in business, everyone
will benefit from the CPA. We are all consumers, after all.
Mini Dissertation (LLM)--University of Pretoria, 2015.