Keeping it short and simple is to advantage of all
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.