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Thread: I can't believe Vodacom still uses this clause in their suretyship agreement!

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    Site Caretaker Dave A's Avatar
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    I can't believe Vodacom still uses this clause in their suretyship agreement!

    Section 64 of the National Credit Act requires plain language. And I've noticed that even the banks have gone to some lengths to ensure sureties are written in plain language nowadays.

    So imagine my surprise when I came across this clause in Vodacom's Agreement of suretyship:

    8. The Surety hereby expressly renounces the defence of prescription and the benefits of the legal exceptions of "order", "excussion", "division", "cession of action", "no value received", "non causa debiti" and all or any exceptions which could or might be pleaded to any claim by the creditor against the Surety declaring himself / herself to be fully acquainted with the meaning and effect of all such exceptions.
    As has been my habit for years now when coming across this particular piece of legal jargon, I duly crossed it out and initialled the alteration. And for years now it hasn't been a problem.

    On rare occasions the creditor has questioned this alteration, and once I've pointed them to S64 and asked them to explain excussion to me in plain language, up until now they've accepted the alteration and life has gone on. In fact, most have amended their credit agreements as a result.

    But of course this is Vodacom. No alterations accepted and the company's application has been declined as a result.
    (Which they failed to inform me of BTW. It was only today when I followed up on their silence that all this has come to light.)

    So I asked the Vodacom representative to explain to me the meaning of clause 8, and in particular the meaning of excussion in plain language.
    He couldn't.
    His supervisor couldn't.
    No-one in the entire Vodacom Customer Service Centre at Gateway could.
    And they couldn't raise anyone on the phone that could (or was willing to) explain it to me either.

    I suggest that answers the test as to whether this constitutes plain language or not

    Anyhow, it has now been booted to Vodacom legal and I'm told I can expect a response from them within 3 days.

    No idea where things are going to go from here, and I am quietly wondering whether this time around I've bitten off more than I should chew - particularly as I know it is exceptionally unlikely the surety is ever going to have to be invoked.

    Any possibly helpful thoughts to preoccupy me while I wait, anyone?
    The trouble with opportunity is it normally comes dressed up as work.

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    Moderator IanF's Avatar
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    Dave
    Consider going prepaid instead. We have converted and cellphone costs have come down. We are on the per second 79 cents plan. Then if you want data get a dual sim phone and get Afrihost data or whichever network works best for you.
    I transfer from FNB website and the Vodacom account is credited immediately.
    Only stress when you can change the outcome!

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    Dave A (09-Sep-14), desA (09-Sep-14)

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    Platinum Member desA's Avatar
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    Sound applied wisdom, IanF.
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    Site Caretaker Dave A's Avatar
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    The challenge is it's for transfers of existing contracts with Vodacom.
    The trouble with opportunity is it normally comes dressed up as work.

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    Diamond Member Vanash Naick's Avatar
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    Even in law, jurists [academics and practitioners] are moving away from legalese [I’ve just done what shouldn’t be done] i.e. ‘legalese ,’(lol). The fact is verbosity, ambiguity, redundancy are all barriers to effective communication. I’ll revert with a sound example[just need to find it, have an idea where it is]
    “The philosophers have only interpreted the world, in various ways. The point, however, is to change it.” Karl Marx
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    Diamond Member Vanash Naick's Avatar
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    Quote Originally Posted by Vanash Naick View Post
    Even in law, jurists [academics and practitioners] are moving away from legalese [I’ve just done what shouldn’t be done] i.e. ‘legalese ,’(lol). The fact is verbosity, ambiguity, redundancy are all barriers to effective communication. I’ll revert with a sound example[just need to find it, have an idea where it is]
    Found it

    Statutory interpretation is a skill that is acquired over time. There are techniques taught to assist in this skill. Leading academics are against the complex and verbose drafting of legislation.


    The legislation mentioned herein is repealed.


    Straight to the jugular then, a learned Judge had this remark for a piece of legislation that was amended several times, namely the erstwhile s 22(1)(d) of the Compulsory Motor Vehicle Insurance Act 56 of 1972:


    “In an attempt to escape from the prolixity which disgraces this piece of legislation I shall take a number of short cuts when referring to its provisions ... In my opinion the man in the street would be at least as perplexed by the language used by the legislature as is the man on the Bench who is writing this judgment. Clearly the judge was not impressed with the standard of drafting and the legalese used in the legislation which it had to interpret.”[1]



    Prof Botha uses two examples of legislative provisions that are ambiguous, verbose, unnecessary and plain difficult for anyone to understand including the judge tasked with interpreting legislation. He tasks you the reader hereof of interpreting it!



    “Section 1 of the Orange Free State Civil Protection Ordinance 10 of 1977 was a somewhat ridiculous attempt to define a 'disaster':

    In this Ordinance, unless the context otherwise indicates' disaster' means a disaster or a state which is not a state of emergency or a state of disaster and which, in the opinion of the Administrator or of the local authority concerned, is a disaster, as defined in section 1 of the Act, or is likely to develop into such a disaster.”[2]


    An additional example is : “The previous Labour Relations Act 28 of 1956: The definition of 'unfair labour practice' referred to in subsection

    (1), shall not be interpreted either to include or exclude a labour practice which in terms of the said definition is an unfair labour practice, merely because it was or was not an unfair labour practice, as the case may be, in terms of the definition of 'unfair labour practice', which definition was substituted by section l(a) of the Labour Relations Amendment Act, 1991: provided that a strike or lock-out shall not be regarded as an unfair labour practice.”[3]



    The point he is trying to make is that one needs to understand the legislation in order to interpret it correctly. Verbosity can never be said to assist this task..


    [1] Botha C Statutory interpretation an introduction for students 5ed (Juta 2012) 8, 9, 10.

    [2] Botha C Statutory interpretation an introduction for students 5ed (Juta 2012) 8, 9, 10.

    [3] Botha C Statutory interpretation an introduction for students 5ed (Juta 2012) 8, 9, 10
    “The philosophers have only interpreted the world, in various ways. The point, however, is to change it.” Karl Marx
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    Platinum Member desA's Avatar
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    It would seems that a number of so-called Lawmakers are boxing above their comfortable weight.
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    Moderator IanF's Avatar
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    Dave you can ask Vodacom to transfer the numbers to prepaid when the contract is up. The last one we did the phone number wasn't available for the day as they switched it on the system, so you must just plan for 1 day downtime. Vodacom do warn you about this.
    Only stress when you can change the outcome!

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    Site Caretaker Dave A's Avatar
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    Following Vanash's line of thought, the one thing that often has me scratching my head in bemusement is - quite clearly government is keen on plain language and ease of interpretation when it comes to contracts and interaction with consumers, and yet they are churning out really complex legislation (ironically in this instance, the National Credit Act being a case in point).

    I recently attended the latest Labour Law Reports update, and there's another example of complex consequence that has been taking years to unravel.
    The trouble with opportunity is it normally comes dressed up as work.

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    Diamond Member wynn's Avatar
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    Excussion; Nope not in 'Wikipedia' asks if I meant 'Excursion' maybe that is the true meaning "you will have to go on an 'EXCURSION' to find the meaning of 'excussion'"
    "Nobody who has succeeded has not failed along the way"
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