Plain language and law

Dr Jenny Hall

April 2023
[Reading: Skills Workbook pp 118 – 127]
 Background and the need
for plain language
1 https://youtu.be/mNqYUPlSm1c

Acknowledgment to Tina Romner who gave permission to use some of the content in this presentation
Moving towards a drafting style that takes contextual
factors into account and reflects accessible language

•OR …

‘Writing in plain English’?

True or false?

• Reading will improve your writing.

• Writing is the means through which you are evaluated.
• In writing, what one says is more important than how one says it.
• Good writers find writing easy.
• Correct grammar and spelling is what makes writing good.
• Employers choose candidates with good communication skills.
What is plain English?

•In a nutshell -

• It is a way of writing or presenting information so that readers can

understand it quickly and easily.

• It avoids verbose (!) or convoluted language, jargon, euphemism

and ambiguous language.

• Language the way you speak, almost, but if wouldn’t use a word in
conversation/ training, avoid using it.
Where does the need for plain language come from?
Exclusion
Language has been used throughout history as a means of exclusion and power
Examples
 In the Middle Ages: Latin versus the spoken languages of Europe
 In the colonial era: colonial languages versus indigenous languages
 South Africa: apartheid and Afrikaans

Today
Jargon: legalese (inter alia, ad hoc, herewithin), medical
jargon, business jargon, IT jargon (disruptive, leverage,
bandwidth, scrums)
Lawyers and language

• Language used by lawyers has often disempowered

• Lawyers are often criticised for using difficult language

• Why do they do this?

 Accuracy/ to avoid misinterpretation
 History and precedent
 A discipline which is conservative and slow to change
 To confuse
 Identity – as Stark said:
Lawyers and language

• Change is required …

Van der Westhuizen, SAJEI (20190)

Why a plain language movement?

• Call for:
 Empowerment
 Openness
 Fairness
 The right to information
 The right to participation
• Values enshrined in the Constitution (more about that
latter)
What is the benefit?

Avoids wasting time translating difficult, wordy documents

Removes ambiguity

Gets your message across to the intended audience

Communicates effectively

Eliminates barriers

Reduces time spent on explaining, queries and complaints

 What is the benefit?

! Greater efficiency - Plain Language empowers you to:

Improve the analysis

Get through your work
quicker Make better decisions

Comply with certain legal Give better feedback

requirements
Plain Language myths

Plain Language is NOT:

01 02 03 04 05 06
Baby talk, A “dumbing Stripping Just Imprecise Banning
or an down” of out editorial – vague or new
attempt to information necessary “polishing” inaccurate words or
be playful technical after you or letting excluding
or pc and legal finish grammar long
information writing slip words
2 Plain language and the
law in South Africa
Constitution

“Early in the drafting process it was decided that the Constitution must as far as possible
be drafted in simple and easily understandable language. The reasons are obvious: (a)
South Africa is a country with vast differences between the educated elite and the illiterate
and poorly educated masses. (b) English is the first language of a small minority of South
Africans. (c) Historically the majority of South Africans were excluded by apartheid
policies from many of the benefits of the law. (d) A constitution belongs to all, not only the
privileged few; it has been described as “the autobiography of a nation”, “a mirror of the
nation’s sole”, and the “birth certificate” of the democratic South Africa. (e) The
Constitution – specifically the Bill of Rights – can and should be a powerful educational
tool. It ought to visibly feature on the walls of school classrooms, community centres,
police offices and Magistrates courts. (f) Transparency, openness and accountability are
constitutional values. (g) The rule of law is central to our constitutional democracy. For the
law to rule, people must know and understand what the law is.”
Justice Van der Westhuizen, 2013
Constitution

• Making rights meaningful –

• Access to information (s32) where it affects rights
• Almost no cross references
• ‘Shall’/ ‘shall not’ replaced by ‘must’/ ‘must not’
• Uses words like ‘everyone’ and ‘their’
• Mostly short sentences
• Values of public administration of transparency, participation and
openness (Chapter 10)

• The approach to the Constitution has influenced the drafting of

other legislation
National Environmental Management Act 107 of 1998

• Principles (section 2(4))

National Environmental Management Act 107 of 1998

• Environmental Impact Assessment Regulations, 2014 (regulation 41(2)(e))

• Notice of an application and opportunity to participate must be given by –

• Readings on public participation and privilege for interest:

• Hall ‘Let the people speak! Resisting the resisting the erosion of the right to public
participation …’ 2022 SALJ 862
• Hall ‘Environmental judgments in the last year – a barometer of the state of environmental
democracy?’ 2022 TSAR 689
South African legislation – other examples
The Short-term Insurance Act, Revised Policyholder Protection Rules 2018 – all
53 of 1998; policyholder communication in plain language
The Long-term Insurance Act, and in a format designed to
52 of 1998 promote easy comprehension and to avoid
uncertainty or confusion.

The Companies Act, 71 of 2008 Section 6(5) defines Plain Language

The South African National “information to consumers must be in plain and

Credit Act 34 of 2005 understandable language”
Financial Advisory and “representations made and information provided
Intermediary Services Act 37 of to a client…must be in Plain Language”
2002
The South African Consumer Section 22 extends the requirement of Plain
Protection Act 68 of 2008 Language to all consumer communication and
defines what Plain Language is
Consumer Protection Act - definition

Section 22 of the Consumer Protection Act

• If the ordinary consumer of a particular piece of communication

• Who has minimal experience and average literacy skills

• Understands without undue effort:

• the meaning
• the significance: What must I do? Why?
• importance: What are the consequences?
Consumer Protection Act
Companies Act

6(5) For the purposes of this Act, a prospectus, notice, disclosure or document is in plain language if it
is reasonable to conclude that a person of the class of persons for whom the prospectus, notice,
disclosure or document is intended, with average literacy skills and minimal experience in dealing with
company law matters, could be expected to understand the content, significance and import of the
prospectus, notice, disclosure or document without undue effort, having regard to –

(a) the context, comprehensiveness and consistency of the prospectus, notice, disclosure or
document;

(b) the organisation, form and style of the prospectus, notice, disclosure or document;

(c) the vocabulary, usage and sentence structure of the prospectus, notice, disclosure or document;
and

(d) the use of any illustrations, examples, headings or other aids to reading and understanding in the
prospectus, notice, disclosure or document.
Plain language and the law

A reminder, plain language is …

Clear and easy to understand

Accurate and unambiguous

Adequate and appropriate in the circumstances

3 Achieving plain language
1 Write for your audience
• First rule of plain language: write for your audience, not for
yourself
• Think of why they want to read your document
• Use language your audience understands and feels comfortable
with
• Take your audience’s current level of knowledge into account
• Don’t write to the experts (unless they are your intended audience)
– write to the average person
• Even an expert prefers to read a clearly written document
2
Organise your information
• Start by stating your purpose and what you want from the reader
• Lay things out in a logical order – make it easy to follow
• Anticipate questions an informed reader is likely to ask – and
organise information to answer the questions in a logical order

Place at beginning of document Place later in document

Most important information you want Background information (where relevant)
reader to understand
General information Exceptions and special conditions
Answer most important questions you Answer all other questions
think your reader is likely to ask upfront
 Use useful headings

Useful headings:
• Illustrate how your document has been organised – helps the reader to
navigate the document
• Help to break up the information
• Help readers to find information quickly

• Three types of headings:

Question headings.
 What is compliance and enforcement? (used in Manuals and training)
Statement headings.
 Understanding compliance and enforcement (used in Manuals and articles)

Topic headings .
 Compliance and enforcement (used as main headings and in formal writing like
essays)
Using lists in opinions, letters and manuals

Using lists:
• Highlight a series of steps, requirements, or pieces of information in a
visually clear way
• Help your reader to focus on important material
• Is useful because they:

Help the reader

Highlight levels of understand the order Help readers skim
importance in which things and scan
happen

Make it easy to Are an ideal way to

identify all steps in a present items, Add white space for
process in a conditions, and easy reading
chronological order exceptions
 Using lists

Example
• Always use a lead in
sentence to explain The tenant may deduct any costs which he
your list incurs because:
• Make sure each bullet • the landlord failed to provide a gardening
in a list can make a service; or
complete sentence if • security system repair 
combined with the
• the security system is faulty and requires
lead-in sentence
repair 
Use tables… in certain types of documents

Shortens and clarifies complex material

Creates more white space - more appealing for the reader

Helps your audience see relationships that are often hidden in dense text

Uses fewer words than straight text

An “if-then” table helps organise material (if this is the case, then that happens)
Example

The table below shows that most people who were interviewed in the
study agree that human rights are important.

Table 1: Are human rights important?

Strongly agree 50 %
Agree 25 %
Disagree 20 %
Strongly disagree 0 %
Don’t know 5 %
 Use examples

• Not usually used in formal legal documents, but -

• Examples help you clarify complex concepts
• Good examples can substitute for long explanations
• The more complex the concept you are writing about, the more you
should consider using an example
• By giving your audience an example that’s relevant to their situation,
you help them relate to your writing
3 •
Use simple language

Choose your words carefully

• Use familiar or commonly used words over unusual or obscure words
• Limit jargon, acronyms, abbreviations, technical and legal speak
where not necessary in a document
• We’re not saying that you need to over simplify or leave out technical
terms etc – they should be used where necessary but then ensure
they are explained simply and as clearly as possible
• Remember that your audience may not be familiar with the
terminology – don’t assume they understand (even when speaking to
experts
.

Use simple language … but

Don’t use –
• Emotive language (unfortunately, surprisingly, etc)
• Slang
• Clichés (at the end of the day)
• Contractions (can’t, mustn’t, won’t)
• Tautologies (dead corpse, new innovation, added bonus)
• Unnecessary abbreviations
 Avoid old and outdated language

forthwith aforementioned hereby above-mentioned

herewith
hereafter henceforth
whereof thereafter
heretofore

therewith
wherein
whatsoever
thereof

whereat
Alternate words

• Use “must” not “shall”

• “Shall” is ambiguous, and rarely occurs in everyday conversation
• Even the legal community is moving to “must” as the clearest way to express
a requirement or obligation

If it is… Then use…

mandatory must
prohibited must not/ may not
optional may
recommended should
Lease agreement - 1
Lease agreement – or 2?

Landlord Tenant

start
Alternate words

• commence

• particulars

• persons

• prior to

•at the present time

• for the duration of

•reason being that

•… bearing in mind that certain terms used in legislation have particular meanings
and are commonly understood
Alternate words

• commence - begin

• particulars - details

• persons – you/ people

• prior to - before

•at the present time - now

• for the duration of - during

•reason being that - because

4 •
Be Concise

Keep it short - smaller “bites” of info are easier to digest

• Leave out unnecessary words – don’t waste your audience’s time
• Challenge every word—do you need it?
• Leave out information that the audience doesn’t need to know
• Limit a paragraph or sentence to one subject or step
• Aim for no more than 7 lines in a paragraph
• Aim for 15 - 20 words per sentence or less
• Leave out excess modifiers e.g. absolutely, actually, completely,
really, quite, totally and very
Plain English drafting tips

•You can start sentences with –

•and
•but
•because
•so

•But don’t break these rules all the time.

5 Keep it conversational

• Use the active voice

• Avoid hidden verbs
• Use the present tense
• Use contractions
 Use the active voice https://youtu.be/UgmAFT0noWI

• Active voice is more clear, concise and direct

• Makes it clear who is supposed to do what
• It eliminates ambiguity about responsibilities i.e. “It must be done,” vs “You
must do it.”
• In an active sentence, the person or company that’s acting is the subject of
the sentence. In a passive sentence, the person or item that is acted upon
is the subject of the sentence.
• Passive sentences often do not identify who is performing the action
• More than any other writing technique, using active voice and specifying
who is performing an action will change the character of your writing.
Plain English drafting tips

Active verbs v passive verbs i.e.

•subject (person or thing doing the action)
•verb (the action)
•object (person or thing that the action is being done to)

The EMI arrested the poacher v the poacher was arrested.

 Examples

Passive voice Active voice

New regulations were proposed. The Department of Environmental
Affairs proposed new regulations.
The following information must be Applicants/ You must include the
included in the application by the following information in your
applicant for it to be considered application.
complete.
Hunting is prohibited. You may not hunt.
 Avoid hidden verbs

• Use the strongest, most direct form of the verb possible - verbs tell your
audience what to do. Make sure it’s clear who does what.
• We hide verbs by turning them into nouns, making them less effective and
using more words than we need.
• Say “we manage the programme” or “we analyse data” not “we are
responsible for management of the programme” or “we conduct an
analysis of the data.”
• Hidden verbs often go hand in hand with passive verbs
Verbs disguised as nouns

Avoid Use

Conduct an analysis Analyse

Present a report Report

Do an assessment Assess

Provide assistance Help

Came to the conclusion of Concluded

 Use the present tense where possible
• The simplest and strongest form of a verb is present tense
• The present tense makes your writing:
 simpler
 more direct
 more forceful
• Writing entirely in the present tense saves your audience work and helps
make your point clearly
• Even if you are talking about an event that occurred in the past, you can
help the reader by writing as much as possible in the present tense
 
We will be submitting a report every quarter. We submit a report every quarter.

If an employee was under the age of 26 or If an employee is under the age of 26 or is

was working as an apprentice when injured, working as an apprentice when injured, their
their earnings would have been calculated on earnings are calculated on future earning
future earning potential. potential.
 Punctuation matters
6 • Know how to use punctuation
• Use it to avoid ambiguity

Woman without her man is nothing

Woman, without her man, is nothing

Woman, without her, man is nothing

4 To summarise
Checklist

A document is written in plain language if it:

 is written for the average reader or intended audience – uses familiar

words

 is organised to help the reader find the information they need

 has useful headings

 uses “you” and other pronouns to speak to the reader

 uses the active voice

Checklist

A document is written in plain language if it:

 uses short sentences, paragraphs and sections

 uses the simplest tense possible - simple present is best

 uses strong verbs, not hidden verbs

 leaves out excess words

 uses “must” to express requirements; avoids “shall”

Thank you