The impact of Section 22 of the Consumer Protection Act 68 of 2008 on drafting principles in the South African law of contract

Abstract

In this dissertation, the impact of section 22 of the Consumer Protection Act, 68 of 2008 on the drafting of contracts in South Africa is investigated. It was shown that there has been a great shift internationally to the drafting of consumer documents in plain language. Some jurisdictions even have statutory guidelines for drafting in plain language. The benefits of drafting in plain language were also mentioned. The South African plain language drafting situation is quite unique, with the question of what the characteristics of an ordinary consumer are, posing to be the most important question in determining specific plain language guidelines for South African consumers. It was found that there are potentially more than one type of ordinary consumer , depending on the type of commercial transaction being entered into. Although no statutory plain language drafting guidelines have been published in South Africa, it was suggested that our common law rules of interpretation are a valuable starting point when looking for guidelines for better drafting. This dissertation concludes that two sets of guidelines be developed for at least two levels of commercial transactions. Firstly, the international guidelines of Kimble should be incorporated into our law for consumer contracts relating to more complex consumer transactions. Secondly, another set of guidelines relating to the use of illustrations, examples, headings or other aids to reading and understanding, as envisioned by the CPA, should be developed for use in everyday consumer contracts where the typical consumer is illiterate or falls into the so called vulnerable consumer category.