1 October 2009

The consumer's right to be informed in plain and understandable language

The Act grants every consumer the right to be provided with information relating to goods or services by the supplier of those goods and services in language that is 'plain and understandable'. Section 22 of the Act sates:

"... [A] notice, document, or visual representation is in plain language if it is reasonable to conclude that an ordinary consumer of the class of persons for whom the notice, document or visual representation is intended, with average literacy skills and minimal experience as a consumer of the relevant goods or services, could be expected to understand the content, significance and import of the notice, document or visual representation without undue effort-"

Section 22 assumes an objective and low standard of literacy, skill and experience with respect to the average consumer. A supplier has to assess any consumer against this standard to ascertain whether the particular consumer would understand the information provided in so far as it relates to a transaction, as well as his obligations flowing from the information provided. Suppliers must have regard to the context, comprehensiveness, consistency, organisation, vocabulary usage, sentence structure and the use of illustrations and examples in any notice given to consumers. A failure on the part of a supplier to comply with the 'plain and understandable language' requirements of the Act may leave the supplier unable to enforce its rights against consumers and open to censure in terms of the enforcement provisions of the Act.

Section 22 also has implications for disclosures made by intermediaries, and mandates that such disclosures be made in plain and understandable language. Specifically, where a supplier has an intermediary who solicits clients on its behalf, then that intermediary must disclose the terms and conditions of supply in respect of whatever product he or she is soliciting the consumer for. The disclosure must be in language that is plain and understandable to the consumer. Furthermore, where an intermediary is soliciting an offer from someone, or where an intermediary is offering the supply of services, then he or she must inform the consumer in plain and understandable language of any services to be performed by an entity other than the intermediary. If the intermediary is selling goods belonging to an entity other than him or herself, such information must also be disclosed to the consumer in plain and understandable language.

The Act also places obligations on suppliers to advertise goods as being available at a particular price in a manner such that consumers would not be misled by, or be unclear as to what the price being advertised actually is. Along similar lines, the Act deals with false representations made by any person dealing with a consumer. 'False representation' refers to unfair tactics or unfair conduct by a supplier who knowingly takes advantage of the fact that a consumer was unable to protect his or her own interests, owing to illiteracy, ignorance, or inability to understand the language of an agreement or representation.

Jay-Ann Jacobs,
Director, Corporate and Commercial

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