Keep­ing it short and sim­ple is to ad­van­tage of all

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - Pa­trick Bracher

Plain lan­guage, and thus easy ac­cess, is an im­por­tant el­e­ment of giv­ing ev­ery­one equal pro­tec­tion of the law

EQUAL ac­cess to jus­tice is a cor­ner­stone of any democ­racy. With­out ac­cess to jus­tice, any other rights that you may have do not mean much. What is of­ten for­got­ten by peo­ple who write leg­is­la­tion, con­tracts and court judg­ments is that ac­ces­si­ble, plain lan­guage is an im­por­tant el­e­ment of giv­ing ev­ery­one equal pro­tec­tion of the law.

This point can be il­lus­trated by look­ing at the judg­ments of the Supreme Court of Ap­peal. Un­til the early years of this cen­tury, the judg­ments of that court could eas­ily run to 60 or 70 pages of dense le­gal rea­son­ing. Then Judge Robert Nu­gent ar­rived on the court’s bench. Nu­gent is what I call a wood-for-the- trees lawyer. It wasn’t long be­fore the judg­ments started shrink­ing in size. He re­tired this year and the av­er­age length of judg­ments is now down to less than 20 typed pages in dou­ble spac­ing. A long judg­ment is 30 pages.

What this means to any­one in­ter­ested in de­vel­op­ments of the law is easy ac­cess. In the old days we used to put aside the judg­ments to read later when we had time. But, nowa­days, we are loaded with in­for­ma­tion and we sel­dom have time. Short, clear judg­ments can be eas­ily read and ab­sorbed even in the course of a busy day. In ad­di­tion, it is much eas­ier for the me­dia to in­ter­pret th­ese judg­ments for the ben­e­fit of the pub­lic. Use­ful ar­ti­cles about new de­vel­op­ments in court- made law ap­pear the day after the ap­peal court judg­ments are de­liv­ered.

By way of con­trast, judg­ments of the Con­sti­tu­tional Court are of­ten lengthy and it is dif­fi­cult to tease out the core prin­ci­ples.

We can all ap­pre­ci­ate that a fair con­sti­tu­tion is a rel­a­tively re­cent ben­e­fit to SA and that the prin­ci­ples have to be care­fully de­vel­oped. But a con­sti­tu­tional court should be a court to which peo­ple turn to for ac­cess to jus­tice and ac­ces­si­ble de­ci­sions are es­sen­tial. The provin­cial high court has sim­i­larly not em­braced the im­por­tance of plain lan­guage and brevity in its judg­ments although things have im­proved a lot un­der the good ex­am­ple of the Supreme Court of Ap­peal.

In pre­vi­ous ar­ti­cles I have dealt with the need for sim­pler, shorter and more trans­par­ent leg­is­la­tion.

In a fu­ture ar­ti­cle I will deal with how the prin­ci­ple of good faith in con­tracts will in­flu­ence the way con­tracts are drafted and en­forced, par­tic­u­larly with con­tracts in­volv­ing con­sumers. It is some­thing we will all have to ac­cept.

You only have to look at the Os­car Pis­to­rius judg­ment to see how a le­gal prin­ci­ple, with a few Latin phrases thrown in, can give rise to a mul­ti­tude of views as to what the law is or ought to be.

Let’s hope for judg­ments in plain lan­guage, so that we all know what we can and can­not do.

Pa­trick Bracher (@PBracher1) is a di­rec­tor at Nor­ton Rose Ful­bright.

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